In September 2017, a Sanilac County circuit court judge granted joint legal custody of a child to a convicted rapist. The father had two convictions for criminal sexual conduct, including one against the mother who he attacked in 2008 when she was only 12-years old. The case started when the mother sought public assistance to care for her now 8-year old son. This led the State of Michigan to locate the biological father through DNA testing so that he would have an obligation to pay child support and reimburse the public assistance paid. However, that judge declared at a hearing that the rapist father would have sole physical custody and joint 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 A month later, the same judge rescinded that court order and declared that, upon recent discovery of his criminal record, the father would have no parental rights. However, that father would still be required to pay child support to the State of Michigan for the financial benefit of his son. The judge publicly apologized for the error and indicated that he signed a stock court form that grants joint legal custody as a matter of course in support enforcement cases. This almost-catastrophe, however, begs the question of exactly what kind of rights a father has when he conceives a child by a woman through rape or other forcible means.
Michigan has three statutes regarding the role of custody, parenting time and paternity with respect to non-consensual conception:
- CUSTODY – Mich. Comp. Laws § 722.25
- If a child custody dispute involves a child who is conceived as the result of acts for which one of the child’s biological parents is convicted of first-degree criminal sexual conduct, second-degree criminal sexual conduct, third-degree criminal sexual conduct, fourth-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan (or a substantially similar statute of another state or the federal government) OR is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not award custody to that biological parent UNLESS the other parent consents to it.
- This prohibition does not apply if the offending parent was convicted of third-degree criminal sexual conduct on the grounds that the other parent was at least 13 years old but less than 16 years old under MCL 750.520d(1)(a).
- This prohibition does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.
- Even if custody is prohibited under this statute, the offending parent is not relieved of any support 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).
- If a proceeding involving parenting time involves a child who is conceived as the result of acts for which one of the child’s biological parents is convicted of first-degree criminal sexual conduct, second-degree criminal sexual conduct, third-degree criminal sexual conduct, fourth-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan (or a substantially similar statute of another state or the federal government) OR is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not award parenting time to that biological parent.
- If the biological parent was convicted of first-degree criminal sexual conduct, second-degree criminal sexual conduct, third-degree criminal sexual conduct, fourth-degree criminal sexual conduct or assault with intent to commit sexual penetration in Michigan and the victim is that individual’s child, then the court shall not grant parenting time with that child or a sibling of that child to that individual, unless both the child’s other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the parenting time.
- This prohibition does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.
- PATERNITY – Mich. Comp. Laws § 722.1445
- If an action is brought by a mother who, after a fact-finding hearing, proves by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration, the court shall do 1 of the following: (a) revoke an acknowledgment of parentage for an acknowledged father; (b) determine that a genetic father is not the child’s father; (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 order of revocation of paternity for that alleged father.
- The court may not take action if, after the date of the alleged nonconsensual sexual penetration, the biological parents cohabit and establish a mutual custodial environment for the child.
Note that a criminal conviction is not required to bar the offending parent from exercising any parental rights. There are many reasons why a conviction would not occur after nonconsensual conception, including the prosecuting attorney’s desire not to proceed with charges or a determination by 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 court judge 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 aware of during this fact-finding hearing:
- The standard of proof is “clear and convincing evidence”, a lower standard that the “guilty beyond 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 too young to legally consent to sexual activity (e.g. statutory rape), the victim parent was under a legal disability where he or she could not understand what was consented to, or the sexual penetration was accomplished 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 often make a determination of lack of consent based on the credibility of the parties. Does the parent have a special reason to lie about the nature of the sexual conduct (e.g. young girl fears judgment by her own parents)? Did the parties carry on a civil 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 not believe the victim parent, then he or she will not prevail. A skilled trial attorney can help put forth the best case possible to the judge to win a fact-finding hearing on such a delicate issue.
If you or a loved one need legal representation in any family law matter, then do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC today.
