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.

CPS and Termination of Parental Rights

Sep 10

The Nevada Supreme Court just affirmed a termination of parental rights even though the parent had completed his case plan. The case is In the Matter of the Parental Rights as to A.P.M. and E.M.M. 131 Nev. Advance Opinion 66. The Supreme Court upheld the termination of parental rights because the children had been out of the home for more than 14 out of 20 months. While this is a legal basis for terminating parental rights it would have been nice to know why the kids didn’t go home even though the father completed his case plan.

Some background on CPS cases. When children are removed from the home there is a hearing within 72 hours to determine if there is probable cause to remove the children from the home. The Court is looking at the safety of the children. A plea hearing is then scheduled at which the Department (CPS) files a complaint and the parents then admit or deny the allegations. If the allegations are denied then a contested hearing is set. If the allegations are admitted or the allegations are substantiated the parents are required to complete a case plan developed by CPS. The goal is reunification. While the parents are working the case plan there are regular hearings to advise the Court of the progress being made on the case plan. However sufficient progress on the case plan is not made or the kids are out of the home for more than 14 or 20 months then termination of parental rights is pursued. The idea being that kids need permanency in their lives.

If you have any questions or need assistance regarding CPS please contact me.