Custody of Children outside of Rape
Unfortunately, when you and an ex-partner are involved in child custody disputes, it tends to turn ugly quickly.
There is a lot of emotion in the matter, and it makes everything more difficult to navigate. The parties tend to get “desperate” to “win.” This may lead to the other parent using a prior criminal history to reduce your custody or visitation rights.
Evidence of prior criminal convictions, or even conduct, can prove challenging to overcome in a child custody dispute. This is especially true if the criminal conviction or conduct in your past is directly related to the child’s best interest or could shed light on how you may be as the custodial parent.
All courts use the standard “child’s best interest” to determine who could be awarded custody and/or visitation.
Most judges believe that criminal activity is a direct reflection of the character of the parent. When a judge is considering the level of importance of prior criminal activity, they will often consider multiple factors, which include:
You are more likely to retain some custody or visitation if the crime you are convicted of is not related to child abuse, spousal abuse, or violent in nature. Unfortunately, a rape charge would fall into the violent crime category.
Specifically for sex crime convictions, if you were required to register as a sex offender in California Penal Code Section 290, the court will not permit that parent to have custody of the child unless the court finds, in writing, that there is no risk to the child.
Custody of Children from Rape
When the product of a rape is a child that is born, there are many states that don’t automatically terminate the sexual assailant’s parental rights. The victim of the rape must go to court in these jurisdictions to terminate her assailant’s rights.
The California statute specifically states
No person shall be granted custody of, or visitation with, a child if the person has been convicted under Section 261 of the Penal Code and the child was conceived as a result of that violation.
(d) The court may order child support that is to be paid by a person subject to subdivision (a), (b), or (c) to be paid through the local child support agency, as authorized by Section 4573 of the Family Code and Division 17 (commencing with Section 17000) of this code. Cal. Fam. Code § 3030
However, in California, “[i]f a person is convicted of sexual assault in California, that individual loses custody and visitation rights to any child conceived during the attack.”
There are many scenarios where a conviction is NOT achieved, for instance, because the victim wants to avoid any possible stigma from a long court case. At this point, it is up to the judge’s discretion. Again, the standard that is used is the “best interest of the child” standard, as discussed above.
These matters are emotional, tough, and confusing. It is always encouraged and advised to retain an experienced lawyer for both the underlying sex crime criminal charge and any child custody disputes.
