By Robert L. Mues   |   August 3rd, 2013

Can a Rapist Obtain Custody and Visitation of a Child Conceived Through Rape?

rapeVery few states have statutes limiting the ability of a man who fathered a child through rape from asserting his parental rights.  Rape and its aftermath is a serious and significant problem faced by our country.  Though many rapes go unreported, it is estimated that roughly 25,000 women become pregnant through rape each year. A significant amount of women who become pregnant through rape each year choose to raise their children.  Despite this, surprisingly little statutory protection exist for these women who chose to raise their children.

Statutory Protections Limited In Rape Parental Rights

Every state imposes criminal sanctions for rape. However, only sixteen states have promulgated statutes which aid women who became pregnant through rape and decided to raise their children. A man who fathers a child through rape has the same rights as any other father with respect to their children. Even in states offering some kind of statutory redress, the protections are typically quite limited. Several of the states with statutes offering redress require a conviction before there will be a termination of parental rights or a denial in visitation.

The State of Ohio offers no statutory preclusions or limitations on the assertion of parental rights and visitation by a rapist who fathered a child through the commission of a rape.  When a court allocates parental rights and responsibilities, the court is required to take into consideration the best interest of the child.  Parents have a fundamental liberty interest in the care, custody, and control of their child.  Ohio statutes and case law further this interest by only allowing termination of parental rights in “last resort” cases. At this point in time according to the Ohio legislature, and the legislatures of a great majority of the states, termination of parental rights is not a “last resort” when a rapist father seeks to invoke his right to custody and visitation.

This is not to say, however, that an Ohio court would allow custody and visitation rights to a father in such circumstances. Ohio courts look at the best interest of the child when allocating parental rights and responsibilities. Under appropriate circumstances, it is understandable that a father seeking custody or visitation of a child conceived through rape would not be in the best interest of the child. A father’s right to care, custody, and control of his child is a fundamental right, but it is not an absolute right.

How Rape Effects Parenting Ability

Rape is capable of causing deep psychological effects on victims. Forcing rape victims to continuously interact with their rapist because the rapist father has chosen to attempt to invoke his rights to custody and visitation can have a traumatizing effect on both the mother and the child. The psychological effects a woman is likely to face when forced to interact with her rapist on a regular basis is likely to have a detrimental effect on her own parenting abilities. Effects such as these, as well as many others, are likely to be significant factors for a Court when determining whether or not to grant parenting time to a rapist father.

What Are The Parental Rights In Cases Of Rape?

When forced to allocate parenting rights and responsibilities between a child’s parents, Ohio courts look at a number of factors for determining what situation is in the best interest of the child. Courts have to consider the ability of the parents to cooperate with each other and the ability to make appropriate decisions regarding the child.  Additionally, the Ohio Revised Code § 3109.04(F)(2) states that a court may take into consideration the ability of the parents to “encourage the sharing of love, affection, and contact between the child and the other parent”.  It seems unlikely that parents in this type of situation would be able to work well with one another when making parenting decisions. It also seems unlikely that a mother would be able to encourage any kind of a meaningful relationship between her child and her rapist. These would be relevant factors that a court would take into consideration when allocating parental rights and responsibilities.

The lack of statutes terminating or restricting a rapist father’s parental rights shows the unwillingness of the states to infringe on a parent’s fundamental right to care, custody, and control of his child. In spite of this, and depending upon the unique facts of the case, a mother in such a situation may prevail by showing that visitation with a child’s rapist father is not in the best interest of the child. Only time will tell if states will provide more rights to the special cases of women who raise a child conceived through rape.

NOTE: This article,”Rape Aftermath: Child Custody And Control” was researched and written by Emily Wagoner, a law clerk at our firm. If you wish to obtain the legal authority for any of the points, please send us an email. We chose to post it without footnotes to make it more readable. Thanks Emily for all your work on this article!

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Rape Aftermath: Child Custody And Control

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