Noemi, an 18-year-old single mom, is getting her little girl ready for a court-ordered visit with the little girl’s dad. She is brushing her daughter’s teeth, putting her clothes on, making sure she has a warm jacket, fixing her hair…and texting a rapist where they should meet for the exchange of their daughter for his parenting time. Plot to a new blockbuster thriller movie? No. A real story.
Noemi’s story was told by a journalist Lisa Ling in her documentary series “This is Life” airing on CNN and her story is not an unusual one in the United States. In Nebraska, where Noemi lives, she could only terminate her attacker’s parental rights if he was convicted of a first-degree sexual assault. However, her attacker was able to plead to a lesser charge of third-degree sexual assault and therefor, under the law, his parental rights were safe. In short, Noemi is required to co-parent with her rapist.
There are several states that require a conviction in order to block parental rights, such as Washington, Oregon, California, Ohio, Kentucky and Arkansas. This becomes problematic for advocates against such laws because according to the Bureau of Justice Statistics, a majority of sexual assaults don’t even make it to the prosecution. However, some of those states may deviate from that rule and use the “clear and convincing evidence” standard that does not require a conviction of first-degree sexual assault. The Judge would rule if the evidence was clear and convincing (under the civil law) that rape occurred and as a result of such rape, the child was born. If the Judge finds that such evidence support the allegations of rape, parental rights could be terminated. Using this standard, as opposed to the requirement of conviction, would also help the rape victims that did not report the crime when it happened.
As with any other law, laws on parental rights for rapists vary from state to state, even between the states that require a conviction. Some states may not apply the parental rights laws if the person who is convicted of the sexual assault is the spouse of the victim, or if the parties continued to live together after the attack. In Utah, the law imposes a time limit as to when the victim must petition for the termination of the parental rights after the childbirth. Some states may even deviate from the “clear and convincing” standard, or conviction requirement and apply the “in the best interest of the child” standard. However, some states, such as Wyoming, Maryland, Mississippi, Alabama and New Mexico do not have any written laws protecting rape victims from custody battles or laws to guide the victims as to how to protect their children from the rapists or laws outlining what are the parental rights of a rapist. In other words, rapists have the same rights under the domestic laws as any other parent.
Colorado is one of the states that asks for a rape conviction before parental rights can be terminated, but Colorado also allows the victim to petition the court for termination of parental rights of someone who has not been convicted, but on the grounds that it is in the best interest of the child.
Many states have been involved in a battle for stricter and clearer laws regarding parental rights for rapists for many years. And as the battle to change the legislation continues, parents, like Noemi, will continue to face their attacker not only in criminal court, but in domestic court as well, and will have to find a way to co-parent.
Please contact the Domestic Team here at Feldmann Nagel Margulis for all of your Family Law Needs.