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Florida Child Custody and Rape

Florida law allows a man who fathered a child through rape to obtain custody or visitation with that child. But a bill introduced to the United States House of Representative by Florida Representative Wendy Wasserman Schultz seeks to permanently change that.

Effect of Sexual Violence in Boca Raton Child Custody Cases

The Rape Survivor Child Custody Act would allow a mother to petition the court to terminate a father’s parental rights in cases where the child was born as a result of sexual assault. The mother could petition for termination regardless of whether she reported the rape or if there was a conviction at trial. The law requires only that she prove the rape by “clear and convincing evidence,” the normal standard approved by the United States Supreme Court for termination of parental rights. The rape could be proven as part of the custody or visitation hearing.

Currently a history of sexual violence between the parents is one of several factors the court can consider when determining child custody. But the amount of weight given to that factor can vary depending on the judge and the time that has elapsed between the child’s birth and the hearing. A judge may be unwilling to give any weight to a claim of sexual assault if there was no criminal conviction. A rapist who expresses remorse for his crime may be able to convince a judge that 10 years of being unable to see his child is punishment enough, despite the psychological damage forced interactions may cause the mother. And there is nothing to stop the rapist from continuing to petition for custody or visitation every year as a means of further harassment to his victim. So it is not a reliable means of ensuring that the child is kept from the father.

The law, if passed, is a double-edged sword. It protects women who were victims of sexual assault from having further interactions with their rapist. Such forced interaction could cause further emotional trauma and inhibit the woman’s ability to psychologically heal from the assault. It also protects the child from having to be raised by a violent rapist. The fact that it allows a father’s rights to be terminated despite a criminal conviction, provided the mother could prove the rape by clear and convincing evidence, adds another layer of protection to women. Rape is vastly underreported and prosecuted, and a rapist could threaten the woman with seeking custody of the baby if she reports the crime. This law would eliminate that possibility.

But it also raises the possibility that fathers could be denied custody or visitation based on false accusations of rape. A baby born from a one-night stand, or due to an extra-marital affair, or where the mother seeks to retaliate against the father could result in the mother falsely accusing the father and prevailing in a custody hearing.

Boca Raton Child Custody Attorneys

Drawing on more than 50 years’ experience handling family law cases, the Boca Raton child custody attorneys at Schwartz l White have helped thousands of parents obtain parenting plans and time sharing agreements that are in their child’s best interests. Give us a call today to find out how we can help. Your first consultation is free.

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