Rape and Child Custody

Oct 10

Rape and Child Custody: There was a recent article in the BBC in which a rapist was given joint custody of the child conceived from a rape. There is also an article in CNN which addresses this issue. Rape is a traumatic event as is fighting someone for child custody. Put both together and it is very traumatic. This is shocking. How can this happen? There are several issues to discuss, Paternity, Child Custody and Visitation.

PATERNITY: Is determining whose name goes on the birth certificate as the father. Under Nevada law, the parents listed on the birth certificate share joint legal and physical custody until a court orders different. A person is named as the father of a child if he signs an Affidavit of Paternity or a court makes a determination of paternity.

There are two courts that can make a determination of paternity; Family Court or Child Support Court. In Family Court either of the parents can file a Complaint to Establish Paternity. This brings the issue of paternity to the Court and allows the Court to make a determination. Child Support Court comes into the picture if the mother applies to the court for child support benefits or applies for cash assistance from the state. In order to apply for cash assistance on behalf of a child, the applicant has to identify the mother and the father. The state then files an action in child support court to determine paternity and child support. Once the child support court establishes paternity for its purposes the issue of Custody comes into play.

CUSTODY: The two types of custody are legal and physical. Legal Custody is generally awarded to both parents and addresses things like medical care, religious upbringing, education. Essentially, legal custody involves making the big decisions which both parents should make jointly. Physical Custody refers to which parent the child lives with and is thus making the day to day decisions. Courts generally award joint physical custody. This time split can be either one week on one week or or the week is split. The court looks at the child’s best interest, including a history of domestic violence, determining custody of a child.

VISITATION: Once legal and physical custody issues are resolved visitation is also decided. The court looks at the best interest of the child in determining visitation.

Now to our scenario of the rapist possibly getting custody and visitation of a child conceived from the rape. Establishing paternity is a question of biology. Once it is determined that a biological relationship exists then the Court determines paternity and what names go on the birth certificate. Once paternity is established, the mother must then go to family court to get an order establishing custody and visitation. She can rely on the rape to ask the court for sole legal and physical custody and to restrict visitation.

Another way to deal with the rapist father is to waive child support in exchange for a termination of parental rights.

Each case such is different. Some factors that can affect the case, is the rapist in or out of custody, whether or not the mother needs child support/public assistance, how close the the mother and rapist live to each other.

If you have any questions, please do not hesitate to contact me.

DNA, Birth Certificates and Paternity

Oct 23

Generally paternity is established by the names on the birth certificate. The birth certificate says who the mother is and who the legal father is and the DNA test results say who the biological father is. If the father is named on the birth certificate paternity is obvious and courts are guided by this when establishing paternity. If no father is listed on the birth certificate then the court will order a DNA test to establish who is or is not the father. So what happens when the person listed on the birth certificate and the DNA test results don’t match?

If you are the mother and want to terminate the parental rights of the “father” then the mother files a Petition to Terminate Parental Rights and show why it is in the child’s best interest to terminate the “father’s” parental rights. DNA test results are not good enough. The “father” can then either oppose the motion or not. In some cases the “father” won’t want to terminate parental rights because he has established a relationship with the child. If the “father” objects then usually negotiations begin and the parties come to an agreement. I have had several cases where I have represented the mother in this type of situation and the “father” has agreed to a termination of parental rights.

If you are the “father” you cannot voluntarily terminate your parental rights regardless of DNA test results. You must file  complaint in what we call a “D” case and ask the Court to remove your name from the birth certificate and explain to the Court why it is in the child’s best interest to do so. At the same time it is best to have a discussion with the mother and get her to agree.

This is why I always want my clients to get a DNA test before an Affidavit of Paternity is signed. In child support court I always recommend to the parties that they ask for a DNA test before paternity is established. It is easier to avoid the mess than clean it up on the back side.