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Does A Parent Who Conceived A Kid By Rape Have Rights To Custody Or Parenting Time In Michigan?

| Nov 11, 2019 | Family Police |

In September 2017, a Sanilac County circuit court judge granted joint legal custody of a child to a convicted rapist. The male parent had two convictions for criminal sexual behave, including i against the female parent who he attacked in 2008 when she was only 12-years old. The example started when the mother sought public assistance to intendance for her now 8-yr one-time son. This led the Land of Michigan to locate the biological begetter through Dna testing and then that he would have an obligation to pay child back up and reimburse the public help paid. However, that judge declared at a hearing that the rapist male parent would accept sole physical custody and articulation legal custody, meaning that he would have a right to participate in major decisions in his son's life.

This controversial decision led to a major uproar. A calendar month later on, the same judge rescinded that court society and declared that, upon recent discovery of his criminal record, the male parent would have no parental rights. However, that father would however exist required to pay child support to the Country of Michigan for the financial do good of his son. The judge publicly apologized for the error and indicated that he signed a stock court class that grants joint legal custody as a matter of course in support enforcement cases. This near-catastrophe, however, begs the question of exactly what kind of rights a father has when he conceives a child by a adult female through rape or other forcible means.

Michigan has 3 statutes regarding the role of custody, parenting fourth dimension and paternity with respect to not-consensual formulation:

• CUSTODY – Mich. Comp. Laws § 722.25

1. If a kid custody dispute involves a child who is conceived as the result of acts for which 1 of the child's biological parents is convicted of get-go-degree criminal sexual behave, 2d-caste criminal sexual carry, tertiary-degree criminal sexual comport, fourth-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan (or a essentially similar statute of another country or the federal government) OR is found by clear and convincing prove in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the courtroom shall non accolade custody to that biological parent UNLESS the other parent consents to it.
2. This prohibition does non utilize if the offending parent was convicted of tertiary-degree criminal sexual carry on the grounds that the other parent was at least 13 years old but less than 16 years old nether MCL 750.520d(1)(a).
3. This prohibition does not apply if, after the date of the confidence, or the appointment of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and plant a common custodial environment for the kid.
4. Even if custody is prohibited under this statute, the offending parent is not relieved of whatsoever back up or maintenance obligation to the child (although the other parent or the guardian of the child may decline support or maintenance from the offending parent).

• PARENTING Fourth dimension – Mich. Comp. Laws § 722.27a

1. If a proceeding involving parenting time involves a kid who is conceived as the effect of acts for which one of the child'due south biological parents is bedevilled of first-degree criminal sexual conduct, second-degree criminal sexual behave, third-degree criminal sexual bear, quaternary-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan (or a substantially similar statute of another land or the federal government) OR is constitute past clear and convincing testify in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not honor parenting time to that biological parent.
2. If the biological parent was convicted of first-degree criminal sexual conduct, 2nd-degree criminal sexual conduct, third-caste criminal sexual behave, fourth-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan and the victim is that individual'due south child, then the court shall not grant parenting time with that kid or a sibling of that kid to that private, unless both the child'southward other parent and, if the court considers the child or sibling to exist of sufficient historic period to limited his or her desires, the child or sibling consent to the parenting time.
3. This prohibition does not apply if, later on the date of the confidence, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial surround for the child.

• PATERNITY – Mich. Comp. Laws § 722.1445

1. If an action is brought by a mother who, after a fact-finding hearing, proves by clear and disarming evidence that the kid was conceived as a result of nonconsensual sexual penetration, the courtroom shall do 1 of the following: (a) revoke an acknowledgment of parentage for an acknowledged begetter; (b) determine that a genetic father is not the child's male parent; (c) set aside an order of filiation for an affiliated father; or (d) Make a determination of paternity regarding an alleged father and enter an club of revocation of paternity for that alleged father.
2. The court may not accept action if, afterward the engagement of the declared nonconsensual sexual penetration, the biological parents cohabit and establish a mutual custodial environment for the child.

Note that a criminal conviction is non required to bar the offending parent from exercising any parental rights. In that location are many reasons why a conviction would not occur afterwards nonconsensual conception, including the prosecuting attorney's want not to proceed with charges or a decision past the criminal court that the offending parent was incompetent to stand trial or not guilty by reason of insanity. This does not prevent the family unit court guess from holding an evidentiary hearing to determine if nonconsensual conception occurred and making its own decision based on legally admissible evidence. The victimized parent has some advantages to be enlightened of during this fact-finding hearing:

• The standard of proof is "articulate and convincing evidence", a lower standard that the "guilty across a reasonable doubt" requirement in criminal cases.

• The phrase "nonconsensual sexual penetration" is not limited to forcible rape. Consent is not present if the victim parent was besides immature to legally consent to sexual activity (e.g. statutory rape), the victim parent was nether a legal disability where he or she could not understand what was consented to, or the sexual penetration was achieved by trickery or duress.

• Nonconsensual sexual penetration is an affirmative defense that can be raised in the offending parent's legal action to obtain paternity, custody or parenting time.

It is not enough to simply allege nonconsensual penetration and prevail. The judge has to frequently make a determination of lack of consent based on the brownie of the parties. Does the parent accept a special reason to lie about the nature of the sexual conduct (east.g. young girl fears judgment past her own parents)? Did the parties carry on a civil human relationship after the alleged nonconsensual act? Is one parent merely alleging rape to gain an advantage in a custody or parenting time determination? If the judge does non believe the victim parent, so he or she will not prevail. A skilled trial attorney tin help put forth the best case possible to the estimate to win a fact-finding hearing on such a delicate issue.

If you or a loved ane need legal representation in any family unit police matter, and so do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC today.

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Source: https://www.monroecountylawyers.com/blog/2019/11/does-a-parent-who-conceived-a-child-by-rape-have-rights-to-custody-or-parenting-time-in-michigan/

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