Parental Rights and Sexual Assault

3/9/2020
NOTE: this webpage is for informational purposes only and should not be relied upon as legal advice or in legal proceedings. If you have questions about your state's law, please contact an attorney in your state.
 

Introduction

Judge using gavelVarious studies over the last two decades estimate that there are between 17,000 and 32,000 rape-related pregnancies in the United States each year. Recent federal and state laws are addressing the issue of parental rights and custody for the children conceived as a result of sexual assault.

Congress enacted the Justice for Victims of Trafficking Act in May 2015. Title IV of that act, the Rape Survivor Child Custody Act, increases the amount of STOP formula grant funding under the Violence Against Women Act (U.S.C. 3796gg et seq.) for those states that have a law permitting mothers of children conceived through rape to seek termination of parental rights of their rapists. The increased funding shall be provided for a 2-year period, but may not be awarded to the same state more than 4 times.

In addition, state legislatures have taken up the issue. Approximately 49 states and the District of Columbia have enacted legislation regarding the parental rights of perpetrators of sexual assault. Several states have more than one statute addressing the issue, depending on the context. For example, Georgia has provisions for both juvenile dependency (child welfare) and adoption. Others have provisions for both the termination of parental rights (TPR) and restrictions on custody and visitation. Here is the general breakdown:

  • Termination of Parental Rights: 32 states allow for the termination of parental rights of perpetrators of sexual assault who conceive a child as a result.
  • Restriction of Parental Rights: 20 states allow for some form of restriction on the parental rights of perpetrators of sexual assault.

See 2013-2020 legislation using the “Family Violence Collaboration” topic in our Child Support and Family Law Legislation Database.

Below is a chart of the state statutes allowing for the termination of parental rights (TPR) or restriction of custody and visitation if the child was conceived as a result of sexual assault. Each states’ provision includes the following categories of information:

  • Conviction: whether a conviction for sexual assault is required to terminate or restrict parental rights
  • Burden of Proof: what burden of proof is necessary to terminate or restrict a parent’s parental rights
  • Context: whether the statute allows for TPR, restriction on custody of visitation, or other limit on the parental rights of perpetrators
  • Statute: statutory language. Note: if you have additional question about the statutory language, consult the full statutory provision.

The box allows you to conduct a full text search or use the dropdown menu option to select a state.

 
Parental Rights and Sexual Assault: State Laws
State/Citation Details

Alabama

 

Ala. Code § 12-15-319

Conviction: Yes

 

Burden of Proof: Clear and Convincing Evidence

 

Context: Termination of Parental Rights

 

Statute:

(b) If a parent has been convicted of rape in the first degree pursuant to Section 13A-6-61, sodomy in the first degree pursuant to Section 13A-6-63, or incest pursuant to Section 13A-13-3, the juvenile court shall make a finding that the parent is unable to properly care for a child and to discharge his or her responsibilities to and for a child, and shall terminate the parental rights of the parent.

Alaska

 

Alaska Stat. § 25.23.180

Conviction: No

Burden of Proof: Not Specified

Context: TPR for Adoption/Ground for TPR

Statute:

(c) The relationship of parent and child may be terminated by a court order issued in connection with a proceeding

 

(1) under this chapter or a proceeding under AS 47.10 on the grounds

 

(A) specified in AS 47.10.080(o) or 47.10.088; or

 

(B) that a parent who does not have custody is unreasonably withholding consent to adoption, contrary to the best interest of the minor child;

 

(2) under this chapter, a proceeding under AS 47.10, or an independent proceeding on the grounds that the parent committed an act constituting sexual assault, sexual abuse of a minor, or incest under the laws of this state, or a comparable offense under the laws of the state where the act occurred, that resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interests of the child.

Arizona

 

Ariz. Rev. Stat. § 25-416

 

2016 HB 2488

Conviction: Yes

Burden of Proof: Not Specified

Context: Denial of all legal decision-making or parenting time rights

Statute:

If a person has been convicted of sexual assault under § 13-1406 and the sexual assault led to the birth of a child, the convicted person has none of the rights prescribed in this chapter related to legal decision-making or parenting time in regard to the child.

Arkansas

 

Ark. Stat. Ann. § 9-10-121

 

2013 HB 1002

Conviction: Yes

Burden of Proof: Not Specified

Context: Paternity

Statute:

(a) All rights of a putative father to custody, visitation, or other contact with a child conceived as a result of a rape shall be terminated immediately upon conviction of the rape in which the child was conceived under § 5-14-103.

(b) The biological mother of a child conceived as a result of rape may petition the court under § 9-10-104 to reinstate the parental rights of a putative father terminated under subsection (a) of this section.

(c) A putative father to a child conceived as a result of rape shall pay child support as provided under § 9-10-109.

(d) A child conceived as a result of rape is entitled to:

(1) Child support under § 9-10-109; and

(2) Inheritance under the Arkansas Inheritance Code of 1969, § 28-9-201 et seq.

California

 

Cal. Fam. Code § 3030

Conviction: Yes

Burden of Proof: Not Specified

Context: Custody of children

Statute:

(b) No person shall be granted custody of, or visitation with, a child if the person has been convicted under Section 261 of the Penal Code and the child was conceived as a result of that violation.

(d) The court may order child support that is to be paid by a person subject to subdivision (a), (b), or (c) to be paid through the local child support agency, as authorized by Section 4573 of the Family Code and Division 17 (commencing with Section 17000) of this code.

Colorado

 

Colo. Rev. Stat. § 19-5-105.5

 

2013 SB 227

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: TPR/Adoption

Statute:

(1) The general assembly hereby declares that the purpose of this statute is to protect the victim of a sexual assault and to protect the child conceived as a result of that sexual assault by creating a process to seek termination of the parental rights of the perpetrator of the sexual assault and by issuing protective orders preventing future contact between the parties. The general assembly further declares that this section creates civil remedies and is not created to punish the perpetrator but rather to protect the interests of the child and the victim of a sexual assault.

(2) As used in this section, unless the context otherwise requires:

(a) “Convicted” or “conviction” has the same meaning as defined in section 19-1-103(29.3).

(a.5) “Disability” means:

(I) A physical or mental impairment that substantially limits one or more major life activities; or

(II) A record of a physical or mental impairment that substantially limited a major life activity.

(a.7) “Petitioner” means a victim of sexual assault who files a petition for termination of the parent-child legal relationship of the other parent as provided in this section.

(a.8) “Respondent” means a person against whom a petition for termination of the parent-child legal relationship is filed as provided in this section.

(b) “Sexual assault” has the same meaning as defined in section 19-1-103(96.5).

(c) “Victim” has the same meaning as defined in section 19-1-103(112)(b).

(3) If a child was conceived as a result of an act that led to the parent's conviction for sexual assault or for a conviction in which the underlying factual basis was sexual assault, the victim of the sexual assault or crime may file a petition in the juvenile court to prevent future contact with the parent who committed the sexual assault and to terminate the parent-child legal relationship of the parent who committed the sexual assault or crime.

(4) The verified petition filed under this section must allege that:

(a) The respondent was convicted on or after July 1, 2013, of an act of sexual assault against the petitioner or convicted of a crime in which the underlying factual basis was sexual assault against the petitioner;

(b) A child was conceived as a result of the act of sexual assault or crime described under paragraph (a) of this subsection (4); and

(c) Termination of the parent-child legal relationship of the respondent with the child is in the best interests of the child.

Colorado

 

Colo. Rev. Stat. § 19-5-105.7

 

2014 HB 1162

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: TPR/Adoption

Statute:

(1) The general assembly hereby declares that the purpose of this statute is to protect a person in a case where it is determined that he or she is a victim of sexual assault but in which no conviction occurred and to protect a child conceived as a result of that sexual assault by creating a process to seek termination of the parental rights of the perpetrator of the sexual assault and by issuing protective orders preventing future contact between the parties. The general assembly further declares that this section creates civil remedies and is not created to punish the perpetrator but rather to protect the interests of the petitioner and the child. The general assembly creates this section to address the procedures in cases where there are allegations of sexual assault but in which a conviction did not occur.

(2) As used in this section, unless the context otherwise requires:

(a) “Conviction” has the same meaning as defined in section 19-1-103(29.3).

(b) “Petitioner” means a person who alleges that he or she is a victim of sexual assault and who files a petition for termination of the parent-child legal relationship of the other parent as provided in this section.

(c) “Respondent” means a person against whom a petition for termination of the parent-child legal relationship is filed as provided in this section.

(d) “Sexual assault” has the same meaning as defined in section 19-1-103(96.5).

(3) The person who alleges that he or she is a victim of sexual assault and who alleges that a child was conceived as a result of a sexual assault in which a conviction did not occur may file a petition in the juvenile court to prevent future contact with the parent who allegedly committed the sexual assault and to terminate the parent-child legal relationship of the parent who allegedly committed the sexual assault.

(4) The verified petition filed under this section must allege that:

(a) The respondent committed an act of sexual assault against the petitioner;

(b) The respondent has not been convicted for the act of sexual assault;

(c) A child was conceived as a result of the act of sexual assault as described under paragraph (a) of this subsection (4); and

(d) Termination of the parent-child legal relationship of the respondent with the child is in the best interests of the child.

Connecticut

 

Conn. Gen. Stat. §17a-111b

 

2001 HB 6652

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: TPR, child welfare, reunification

Statute:

(b) The Commissioner of Children and Families or any other party may, at any time, file a motion with the court for a determination that reasonable efforts to reunify the parent with the child are not required. The court shall hold an evidentiary hearing on the motion not later than thirty days after the filing of the motion or may consolidate the hearing with a trial on a petition to terminate parental rights pursuant to section 17a-112. The court may determine that such efforts are not required if the court finds upon clear and convincing evidence that:

(4) the parent was convicted by a court of competent jurisdiction of sexual assault, except a conviction of a violation of section 53a-71 or 53a-73a resulting in the conception of the child;

Connecticut

 

Conn. Gen. Stat. § 17a-112

 

2016 HB 5605

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Child welfare, adoption/TPR

Statute:

(j) The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) (G) the parent committed an act that constitutes sexual assault as described in section 53a-70, 53a-70a, 53a-70c, 53a-71, 53a-72a, 53a-72b or 53a-73a or compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force as described in section 53a-70b, if such act resulted in the conception of the child.

Connecticut

 

Conn. Gen. Stat. § 45a-717

 

2016 HB 5605

Conviction: Yes and No

Burden of Proof: Clear and convincing

Context: TPR

Statute:

(g) At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2) (G) except as provided in subsection (h) of this section, the parent committed an act that constitutes sexual assault as described in section 53a-70, 53a-70a, 53a-70c, 53a-71, 53a-72a, 53a-72b or 53a-73a or compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force as described in section 53a-70b, if such act resulted in the conception of the child; or (H) the parent was finally adjudged guilty of sexual assault under section 53a-70, 53a-70a, 53a-70c, 53a-71, 53a-72a, 53a-72b or 53a-73a or of compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force under section 53a-70b, if such act resulted in the conception of the child.

Delaware

 

Del. Code tit. 13, § 724A

Conviction: Yes

Burden of Proof: Not specified

Context: Child protection, prohibition on visitation

Statute:

(e) If a child is conceived and subsequently born as the result of an act of rape of any degree or unlawful sexual intercourse, in either the first or second degree with the mother, the biological father of said child shall not be permitted visitation privileges under this section. This subsection shall apply only where the father pleads guilty or nolo contender, or is convicted of any degree of rape or unlawful sexual intercourse, in either the first or second degree.

District of Columbia

 

D.C. Code § 16-914(k)

 

2013 B 184

Conviction: Yes

Burden of Proof: Not specified

Context: Child Custody

Statute:

(k) Notwithstanding any other provision of this section, no person shall be granted legal custody or physical custody of, or visitation with, a child if the person has been convicted of first degree sexual abuse, second degree sexual abuse, or child sexual abuse, and the child was conceived as a result of that violation. Nothing in this subsection shall be construed as abrogating or limiting the responsibility of a person described herein to pay child support.

Florida

 

Fla. Stat. § 39.806

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Ground for TPR

Statute:

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:

(m) The court determines by clear and convincing evidence that the child was conceived as a result of an act of sexual battery made unlawful pursuant to s. 794.011, or pursuant to a similar law of another state, territory, possession, or Native American tribe where the offense occurred. It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery. A petition for termination of parental rights under this paragraph may be filed at any time. The court must accept a guilty plea or conviction of unlawful sexual battery pursuant to s. 794.011 as conclusive proof that the child was conceived by a violation of criminal law as set forth in this subsection.

Georgia

 

Ga. Code § 15-11-2

 

2016 SB 331

Conviction: Not specified

Burden of Proof: Not specified

Context: Juvenile court definitions that apply to TPR, CHINS, Delinquency

Statute:

(5) “Aggravated circumstances” means the parent has: (G) Caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age.

Georgia

 

Ga. Code § 19-7-22

 

2016 SB 331

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Legitimation/Paternity

Statute:

(d) (2)(A) If the court determines by clear and convincing evidence that the father caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age, or an offense which consists of the same or similar elements under federal law or the laws of another state or territory of the United States, it shall create a presumption against legitimation.

(B) Notwithstanding Code Section 53-2-3, if the court denies a legitimation petition under this paragraph, the child shall be capable of inheriting from or through his or her father. Notwithstanding Code Section 53-2-4, if the court denies a legitimation petition under this paragraph, the father shall not be capable of inheriting from or through his child.

(C) If there is a pending criminal proceeding in connection with an allegation made pursuant to subparagraph (A) of this paragraph, the court shall stay discovery in the legitimation action until the completion of such criminal proceeding.

Georgia

 

Ga. Code § 19-8-10

 

2016 SB 331

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: TPR/Adoption

Statute:

(a) Surrender or termination of rights of a parent pursuant to subsection (a) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13 when the court determines by clear and convincing evidence that the: (4) Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age;

and the court is of the opinion that the adoption is in the best interests of that child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

Georgia

 

Ga. Code § 19-8-11

 

2016 SB 331

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: TPR/Adoption

Statute:

(a) (3) Parental rights may be terminated pursuant to paragraph (1) or (2) of this subsection when the court determines by clear and convincing evidence that the: (D) Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age; or

and the court shall set the matter down to be heard in chambers not less than 30 and not more than 60 days following the receipt by such remaining parent of the notice under subsection (b) of this Code section and shall enter an order terminating such parental rights if it so finds and if it is of the opinion that adoption is in the best interests of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

Hawaii

 

Hawaii Rev. Stat. § 571-46

 

2013 SB 529

Conviction: Yes

Burden of Proof: Not specified

Context: Custody and Visitation

Statute:

(17) Notwithstanding any provision to the contrary, no natural parent shall be granted custody of or visitation with a child if the natural parent has been convicted in a court of competent jurisdiction in any state of rape or sexual assault and the child was conceived as a result of that offense; provided that:

(A) A denial of custody or visitation under this paragraph shall not affect the obligation of the convicted natural parent to support the child;

(B) The court may order the convicted natural parent to pay child support;

(C) This paragraph shall not apply if subsequent to the date of conviction, the convicted natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

(D) A custodial natural parent may petition the court to grant the convicted natural parent custody and visitation denied pursuant to this paragraph, and upon such petition the court may grant custody and visitation to the convicted natural parent where it is in the best interest of the child.

Hawaii

 

Hawaii Rev. Stat. § 571-61

 

2013 SB 529

2016 SB 2811

Conviction: No

Burden of Proof: Clear and convincing

Context: TPR allowed

Statute:

(5) The family courts may terminate the parental rights in respect to any child of any natural parent upon a finding by clear and convincing evidence that the natural parent committed sexual assault of the other natural parent, or an equivalent offense under the laws of another state, territory, possession, or Native American tribe where the offense occurred, and the child was conceived as a result of the sexual assault perpetrated by the parent whose rights are sought to be terminated; provided that:

(A) The court shall accept, as conclusive proof of the sexual assault, a guilty plea or conviction of the child's natural parent for the sexual assault, or an equivalent offense under the laws of another state, territory, possession, or Native American tribe where the offense occurred, of the other natural parent;

(B) Termination shall mean, when used with respect to parental rights in this paragraph, a complete and final termination of the parent's right to custody of, guardianship of, visitation with, access to, and inheritance from a child;

(C) The termination of parental rights shall not affect the obligation of the child's natural parent to support the child;

(D) The court may order the child's natural parent to pay child support;

(E) It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the sexual assault;

(F) This paragraph shall not apply if subsequent to the date of the sexual assault, the child's natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

(G) The custodial natural parent may petition the court to reinstate the child's natural parent's parental rights terminated pursuant to this paragraph.

Idaho

 

Idaho Code § 16-2005

 

2005 HB 325

Conviction: Not specified

Burden of Proof: Not specified

Context: TPR

Statute:

(2) The court may grant an order terminating the relationship and may rebuttably presume that such termination of parental rights is in the best interests of the child where:

(a) The parent caused the child to be conceived as a result of rape, incest, lewd conduct with a minor child under the age of sixteen (16) years, or sexual abuse of a child under the age of sixteen (16) years, as defined in sections 18-6101, 18-1508, 18-1506 and 18-6602, Idaho Code;

Illinois

 

Ill. Rev. Stat. ch. 750, § 46/622

 

2013 HB 3128

2016 HB 1531

Conviction: Yes, and no

Burden of Proof: Clear and convincing evidence

Context: Parentage Act/parenting time

Statute:

§ 622. Allocation of parental responsibilities or parenting time prohibited to men who father through sexual assault or sexual abuse.

(a) This Section applies to a person who has been found to be the father of a child under this Act and who:

(1) has been convicted of or who has pled guilty or nolo contendere to a violation of Section 11-1.20 (criminal sexual assault), Section 11-1.30 (aggravated criminal sexual assault), Section 11-1.40 (predatory criminal sexual assault of a child), Section 11-1.50 (criminal sexual abuse), Section 11-1.60 (aggravated criminal sexual abuse), Section 11-11 (sexual relations within families), Section 12-13 (criminal sexual assault), Section 12-14 (aggravated criminal sexual assault), Section 12-14.1 (predatory criminal sexual assault of a child), Section 12-15 (criminal sexual abuse), or Section 12-16 (aggravated criminal sexual abuse) of the Criminal Code of 1961 or the Criminal Code of 2012, or a similar statute in another jurisdiction, for his conduct in fathering that child; or

(2) at a fact-finding hearing, is found by clear and convincing evidence to have committed an act of non-consensual sexual penetration for his conduct in fathering that child.

(b) A person described in subsection (a) shall not be entitled to an allocation of any parental responsibilities or parenting time with that child without the consent of the child's mother or guardian. If the person described in subsection (a) is also the guardian of the child, he does not have the authority to consent to parenting time or the allocation of parental responsibilities under this Section. If the mother of the child is a minor, and the person described in subsection (a) is also the father or guardian of the mother, then he does not have the authority to consent to the allocation of parental responsibilities or parenting time.

(c) Notwithstanding any other provision of this Act, nothing in this Section shall be construed to relieve the father described in subsection (a) of any support and maintenance obligations to the child under this Act. The child's mother or guardian may decline support and maintenance obligations from the father.

Indiana

 

Ind. Code § 31-35-3.5-1 et.seq.

 

2016 HB 1064

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: TPR

Statute: (see other statutory provisions for more)

Sec. 6. A showing by clear and convincing evidence that:

(1) the alleged perpetrator committed an act of rape against a parent described in section 5(2)(A) of this chapter; and

(2) the child was conceived as a result of the act of rape;

is prima facie evidence that termination of the parent-child relationship between the alleged perpetrator and the child is in the best interests of the child.

Iowa

 

Iowa Code § 232.116

 

Iowa Code § 600A.8

 

2016 HB 2386

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Grounds for TPR

Statute: Iowa Code § 232.116:

1. Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:

p. The court finds there is clear and convincing evidence that the child was conceived as the result of sexual abuse as defined in section 709.1, and the biological parent against whom the sexual abuse was perpetrated requests termination of the parental rights of the biological parent who perpetrated the sexual abuse.

Kansas

 

Kan. Stat. § 38-2269

Conviction: Yes

Burden of Proof: Not specified

Context: Factors for TPR

Statute:

(e) If a person is convicted of a felony in which sexual intercourse occurred, or if a juvenile is adjudicated a juvenile offender because of an act which, if committed by an adult, would be a felony in which sexual intercourse occurred, and as a result of the sexual intercourse, a child is conceived, a finding of unfitness may be made.

(f) The existence of any one of the above factors standing alone may, but does not necessarily, establish grounds for termination of parental rights.

Kansas

 

Kan. Stat. § 38-2271

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: Factor for unfitness

Statute:

(a) It is presumed in the manner provided in K.S.A. 60-414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:

(12) a parent has been convicted of rape, K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto, or comparable proceedings under the laws of another jurisdiction resulting in the conception of the child

Kentucky

 

Ky. Rev. Stat. § 403.322

 

Ky. Rev. Stat. § 405.028

 

2014 SB 108

Conviction: Yes

Burden of Proof: Not specified

Context: Child custody

Statutes:

Ky. Rev. Stat. § 403.322

(1) The Commonwealth recognizes that certain victims of sexual assault may conceive a child as a result of the sexual assault and may choose to bear and raise the child. The Commonwealth also recognizes that victims of a sexual assault who have elected to raise a child born as a result of the sexual assault, as well as that child, may suffer serious emotional or physical trauma if the perpetrator of the assault is granted parental rights with the child.

(2) Except as provided in subsection (3) of this section, any person who has been convicted of a felony offense under KRS Chapter 510, in which the victim of that offense has conceived and delivered a child, shall not have custody or visitation rights, or the rights of inheritance under KRS Chapter 391 with respect to that child.

(3) The mother of the child may waive the protection afforded under subsection (2) of this section regarding visitation and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.

(4) Unless waived by the mother and, if applicable, the public agency substantially contributing to the support of the child, a court shall establish a child support obligation against the father of the child pursuant to KRS 403.211.

 

Ky. Rev. Stat. § 405.028

(1) Except as provided in subsection (2) of this section, any person who has been convicted of a felony offense under KRS Chapter 510, in which the victim of that offense has conceived and delivered a child, shall not have custody or visitation rights, or the right of inheritance under KRS Chapter 391 with respect to that child.

(2) The mother of the child may waive the protection afforded under subsection (1) of this section regarding visitation and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.

(3) Unless waived by the mother and, if applicable, the public agency substantially contributing to the support of the child, a court shall establish a child support obligation against the father of the child pursuant to KRS 403.211.

Louisiana

 

La. Civ. Code, Art. 137

Conviction: No

 

Burden of Proof: Not specified

 

Context: Custody and Visitation

 

Statute:

La. Civ. Code, Art. 137

A. In a proceeding in which visitation of a child is being sought by a parent, if the child was conceived through the commission of a felony rape, the parent who committed the felony rape shall be denied visitation rights and contact with the child.

Louisiana

 

La. Child. Code § 1015

La. Child. Code § 1015.1

La. Child. Code § 1004

La. Child. Code § 1007

2001 SB 1076

2016 HB 1135

Conviction: Yes or No

Burden of Proof: Clear and Convincing Evidence

Context: Adoption; Ground for TPR

Statutes:

La. Child. Code § 1015

The grounds for termination of parental rights are:

(3) Conviction of a sex offense as defined in R.S. 15:541 by the natural parent which resulted in the conception of the child.

(9) The commission of a sex offense as defined in 15:541 by the natural parent which resulted in the conception of the child.

 

La. Child. Code § 1004

I. When a child is conceived as the result of a sex offense as defined in R.S. 15:541, the victim of the sex offense who is the custodial parent may petition to terminate the rights of the perpetrator of the sex offense. Termination shall result in the loss of custody, visitation, contact, and other parental rights of the perpetrator regarding the child, but shall not affect the inheritance rights of the child. The perpetrator shall be cast in judgment for court costs.

Maine

 

Me. Rev. Stat. Ann. tit. 19-A, § 1658

 

2016 SB 575

Conviction: Yes, and no

Burden of Proof: Preponderance of the evidence if conviction; Clear and convincing if no conviction

Context: TPR allowed

Statute:

This section applies to the termination of parental rights and responsibilities with respect to a specific child conceived as a result of an act of sexual assault by the parent of that child.

1. Petitioner. The petition for termination may be filed by the other parent or, if the other parent is a minor, the parent or guardian of the other parent.

2. Petition. The petitioner may file a petition with the District Court that requests the termination of the parental rights and responsibilities of the parent and alleges:

A. That the parent was convicted of a crime involving sexual assault, as defined in Title 17-A, section 253, 254 or 556, or a comparable crime in another jurisdiction, that resulted in the conception of the child; or

B. That the child was conceived as a result of an act of sexual assault, as defined in Title 17-A, section 253, 254 or 556, or a comparable crime in another jurisdiction.

3. Termination. Except as provided in subsection 4, if the petitioner proves the allegation in subsection 2, paragraph A by a preponderance of the evidence, the court shall terminate the parental rights and responsibilities of the parent. If the petitioner proves the allegation in subsection 2, paragraph B by clear and convincing evidence, the court may terminate the parental rights and responsibilities of the parent.

4. Exception. The court is not required to terminate the parental rights and responsibilities of a parent convicted of gross sexual assault under Title 17-A, section 253, subsection 1, paragraph B that resulted in the conception of the child if:

A. The parent or guardian of the other parent filed the petition;

B. The other parent informs the court that the sexual act was consensual; and

C. The other parent opposes the termination of the parental rights and responsibilities of the parent convicted of the gross sexual assault.

Maine

 

Me. Rev. Stat. Ann. tit. 22, § 4055

 

2016 SB 575

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Grounds for TPR

Statute:

1-B. Conception by sexual assault as grounds for termination. The court may order termination of parental rights if the court finds, based on clear and convincing evidence, that the child was conceived as a result of an act by the parent of sexual assault or a comparable crime in another jurisdiction. For purposes of this subsection, “sexual assault” has the same meaning as in Title 17-A, section 253, 254 or 556. A guilty plea or conviction for sexual assault is considered clear and convincing evidence for purposes of this subsection.

Maryland

 

Md. Family Law Code Ann. § 5-1402

 

2018 MD H 1

2018 MD S 2

Conviction: No

Burden of Proof: A conviction or clear and convincing evidence.

Context: Grounds for TPR.

Statute:

(a) Except as provided in subsection (b) of this section, after a trial, a court may terminate the parental rights of a respondent under this subtitle if the court:

(1) determines that the respondent has been served in accordance with the Maryland Rules;

(2)(i) finds that the respondent has been convicted of an act of nonconsensual sexual conduct against the other parent that resulted in the conception of the child at issue in an action under this subtitle; or

(ii) finds by clear and convincing evidence that the respondent committed an act of nonconsensual sexual conduct against the other parent that resulted in the conception of the child at issue in an action under this subtitle; and

(3) finds by clear and convincing evidence that it is in the best interest of the child to terminate the parental rights of the respondent.

Massachusetts

 

Mass. Gen. Laws Ann. ch. 209C, § 3

Conviction: Yes

Burden of Proof: Not specified

Context: Paternity; Prohibition on visitation rights

Statute:

No court shall make an order providing visitation rights to a parent who was convicted of rape, under sections 22 to 23B, inclusive, of chapter 265 or section 2, 3, 4 or 17 of chapter 272, and is seeking to obtain visitation with the child who was conceived during the commission of that rape, unless the judge determines that such child is of suitable age to signify the child's assent and the child assents to such order and that assent is in the best interest of the child; provided, however, that a court may make an order providing visitation rights to a parent convicted of rape under section 23 of said chapter 265, if (i) visitation is in the best interest of the child and (ii) either the other parent of the child conceived during the commission of that rape has reached the age of 18 and said parent consents to such visitation or the judge makes an independent determination that visitation is in the best interest of the child.

Michigan

 

Mich. Comp. Laws § 722.25

 

2016 HB 4481

Conviction: Yes, and no

Burden of Proof: Not specified if conviction; clear and convincing if no conviction

Context: Prohibition on custody

Statute:

(2) Notwithstanding other provisions of this act, if a child custody dispute involves a child who is conceived as the result of acts for which 1 of the child's biological parents is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, 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. This subsection does not apply to a conviction under section 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection 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.

(3) An offending parent is not entitled to custody of a child described in subsection (2) without the consent of that child's other parent or guardian.

(4) Notwithstanding other provisions of this act, subsection (2) does not relieve an offending parent of any support or maintenance obligation to the child. The other parent or the guardian of the child may decline support or maintenance from the offending parent.

(5) A parent may assert an affirmative defense of the provisions of subsection (2) in a proceeding brought by the offending parent regarding a child described in subsection (2).

Michigan

 

Mich. Comp. Laws § 722.1445

 

2016 SB 858

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Paternity establishment

Statute:

Sec. 15. (1) If an action is brought by an alleged father who proves by clear and convincing evidence that he is the child's father, the court may make a determination of paternity and enter an order of filiation as provided for under section 7 of the paternity act, 1956 PA 205, MCL 722.717.

(2) 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.

(d) Make a determination of paternity regarding an alleged father and enter an order of revocation of paternity for that alleged father.

(3) Subsection (2) does not apply if, after the date of the alleged nonconsensual sexual penetration described in subsection (2), the biological parents cohabit and establish a mutual custodial environment for the child.

(4) As used in this section, “sexual penetration” means that term as defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a.

Mississippi

 

Miss. Code § 93-15-119

 

2017 SB 2342

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Ground for TPR

Statute:

(1) A court hearing a petition under this chapter may terminate the parental rights of a parent when, after conducting an evidentiary hearing, the court finds by clear and convincing evidence:

(b) That a parent has committed against the other parent a sexual act that is unlawful under Section 97-3-65 or 97-3-95, or under a similar law of another state, territory, possession or Native American tribe where the offense occurred, and that the child was conceived as a result of the unlawful sexual act. A criminal conviction of the unlawful sexual act is not required to terminate the offending parent's parental rights under this paragraph (b).

Missouri

 

Mo. Rev. Stat. § 211.447

 

1997 HB 343

Conviction: Yes and No

Burden of Proof: Varies

Context: Ground for TPR

Statute:

5. The juvenile officer or the division may file a petition to terminate the parental rights of the child's parent when it appears that one or more of the following grounds for termination exist:

(4)  The child was conceived and born as a result of an act of forcible rape or rape in the first degree.  When the biological father has pled guilty to, or is convicted of, the forcible rape or rape in the first degree of the birth mother, such a plea or conviction shall be conclusive evidence supporting the termination of the biological father's parental rights; or

 

11.  A court of competent jurisdiction may terminate the parental rights of a biological father of a child if he is an alleged perpetrator of forcible rape under section 566.030 as it existed prior to August 28, 2013, or rape in the first degree under section 566.030 that resulted in the conception and birth of the child. The biological mother who is the victim of the forcible rape or rape in the first degree or, if she is a minor, someone on her behalf may file a petition to terminate the parental rights of the biological father. The court may terminate the parental rights of the biological father if the court finds that by:

  (1)  Clear, cogent, and convincing evidence the biological father committed the act of forcible rape or rape in the first degree against the biological mother;

  (2)  Clear, cogent, and convincing evidence the child was conceived as a result of that act of forcible rape or rape in the first degree; and

  (3)  The preponderance of the evidence the termination of the parental rights of the biological father is in the best interests of the child.

 

Montana

 

Mont. Code Ann. § 41-3-609

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: Ground for TPR

Statute:

(1) The court may order a termination of the parent-child legal relationship upon a finding established by clear and convincing evidence, except as provided in the federal Indian Child Welfare Act, if applicable, that any of the following circumstances exist:

(c) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born;

Montana

 

Mont. Code Ann. § 45-5-503;

§ 46-1-401

Conviction: Yes

Burden of Proof: Beyond a reasonable doubt

Context: Criminal code; forfeiture of parental and custodial rights

Statute:

(8) If as a result of sexual intercourse without consent a child is born, the offender who has been convicted of an offense under this section and who is the biological parent of the child resulting from the sexual intercourse without consent forfeits all parental and custodial rights to the child if the provisions of 46-1-401 have been followed.

(1) A court may not impose a penalty enhancement specified in Title 45, Title 46, or any other provision of law unless:

(a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment, with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact;

(b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt;

(c) if the case was tried to the court without a jury, the court finds beyond a reasonable doubt that the enhancing act, omission, or fact occurred; and

(d) a defendant who knowingly and voluntarily pleaded guilty to an offense also admitted to the enhancing act, omission, or fact.

Montana

 

Mont. Code Ann. § 40-6-1001; § 41-3-607

2017 SB 22

Conviction: Yes

Burden of Proof: Convicted of a felony in which sexual intercourse occurred and the child was born; or by clear and convincing evidence in a hearing.

Context: Grounds for TPR

Statute:

(2) Grounds for termination pursuant to this section exist when the parent of a child:

 

(a) is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born; or

 

(b) at a fact-finding hearing is found by clear and convincing evidence, except as provided in the federal Indian Child Welfare Act, if applicable, to have committed an act of sexual intercourse without consent, sexual assault, or incest that caused the child to be conceived.

Nebraska

 

Neb. Rev. Stat. § 43-292

Conviction: Yes

Burden of Proof: Not specified

Context: Ground for TPR

Statute:

(11) One parent has been convicted of felony sexual assault of the other parent under section 28-319.01 or 28-320.01 or a comparable crime in another state.

Nevada

 

Nev. Rev. Stat. § 125C.210

Conviction: Yes

Burden of Proof: Beyond a Reasonable Doubt

Context: Prohibition on custody and visitation

Statute:

1. Except as otherwise provided in subsection 2, if a child is conceived as the result of a sexual assault and the person convicted of the sexual assault is the natural father of the child, the person has no right to custody of or visitation with the child unless the natural mother or legal guardian consents thereto and it is in the best interest of the child.

2. The provisions of subsection 1 do not apply if the person convicted of the sexual assault is the spouse of the victim at the time of the sexual assault. If the persons later divorce, the conviction of sexual assault creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the sexual assault is not in the best interest of the child. The court shall set forth findings that any custody or visitation arrangement ordered by the court adequately protects the child and the victim of the sexual assault.

Nevada

 

Nev. Rev. Stat. § 128.105

 

2017 AB 228

Conviction: No

Burden of Proof: Not specified

Context: Grounds for TPR

Statute:

1. The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. An order of the court for the termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106 to 128.109, inclusive, and based on evidence and include a finding that:

(a) The best interests of the child would be served by the termination of parental rights; and

(b) The conduct of the parent or parents was the basis for a finding made pursuant to subsection 3 of NRS 432B.393 or demonstrated at least one of the following:

(8) The child was conceived as a result of a sexual assault for which the natural parent was convicted.

New Hampshire

 

N.H. Rev. Stat. Ann. § 170-C:5-a

 

2014 SB 253; 2017 SB 166

Conviction: Yes

Burden of Proof: Beyond a Reasonable Doubt

Context: Grounds for TPR

Statute:

A petition for termination of the parent-child relationship shall be granted in cases where the child's birth is the result of sexual assault of the birth mother and where termination of the parent-child relationship is in the best interests of the child. Upon a showing, beyond a reasonable doubt, that the child's birth is the result of sexual assault of the birth mother, there shall be a rebuttable presumption that termination of the biological father's parent-child relationship with the child is in the best interest of the child. This section shall apply to a person who has been found to be the father of a child and who:

I. Has been convicted of or who has pled guilty or nolo contendere to a violation of sexual assault as defined in RSA 632-A:2 through RSA 632-A:4, or a similar statute in another state against the birth mother for his conduct in fathering the child; or

II. At a fact-finding hearing, is found beyond a reasonable doubt to have fathered the child through an act of non-consensual sexual penetration.

New Jersey

 

N.J. Stat. Ann. § 9:2-4.1

Conviction: Yes

Burden of Proof: Not specified

Context: Prohibition on custody and visitation

Statute:

a. Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S.2C:14-2 shall not be awarded the custody of or visitation rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded. However, a court that awards such custody or visitation rights to a person convicted of sexual assault under N.J.S.2C:14-2 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.

b. Notwithstanding any provision of law to the contrary, a person convicted of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded. However, a court that awards such custody or visitation rights to a person convicted of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.

c. A denial of custody or visitation under this section shall not by itself terminate the parental rights of the person denied visitation or custody, nor shall it affect the obligation of the person to support the minor child.

d. In any proceeding for establishment or enforcement of such an obligation of support the victim shall not be required to appear in the presence of the obligor and the victim's and child's whereabouts shall be kept confidential.

New Mexico

 

N.M. Stat. § 32A-5-19

Conviction: Not specified

Burden of Proof: Not specified

Context: Adoption

Statute:

The consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act shall not be required from:

C. a biological father of an adoptee conceived as a result of rape or incest;

New York

 

N.Y. Dom. Rel. § 240

 

2013 SB 5069

Conviction: Yes

Burden of Proof: Not specified

Context: Custody and visitation

Statute:

(b) Notwithstanding any other provision of this chapter to the contrary, there shall be a rebuttable presumption that it is not in the best interests of the child to be placed in the custody of or to visit with a person who has been convicted of one or more of the following sexual offenses in this state or convicted of one or more offenses in another jurisdiction which, if committed in this state, would constitute one or more of the following offenses, when a child who is the subject of the proceeding was conceived as a result: (A) rape in the first or second degree; (B) course of sexual conduct against a child in the first degree; (C) predatory sexual assault; or (D) predatory sexual assault against a child.

North Carolina

 

N.C. Gen. Stat. § 7B-1111

 

2012 HB 235

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: Ground for TPR; Abuse, Neglect, Dependency

Statute:

(a) The court may terminate the parental rights upon a finding of one or more of the following:

(11) The parent has been convicted of a sexually related offense under Chapter 14 of the General Statutes that resulted in the conception of the juvenile.

North Carolina

 

N.C. Gen. Stat. § 14-27.21 through § 14-27.23

Conviction: Yes

Burden of Proof: Not specified

Context: Criminal Code; prohibition on custody

Statutes:

First Degree Forcible Rape: (c) Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

 

Second Degree Forcible Rape: (c) Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child conceived during the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

 

Statutory Rape of a Child By an Adult: (d) Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

North Dakota

 

N.D. Cent. Code § 27-20-44

 

2019 SB 2185

Conviction: Yes

Burden of Proof: Beyond a Reasonable Doubt

Context: Grounds for TPR.

Statute:

1. The court by order may terminate the parental rights of a parent with respect to the parent's child if:

e. The parent has pled guilty or nolo contendere to or has been found guilty of engaging in a sexual act under section 12.1–20–03 or 12.1–20–04, the sexual act led to the birth of the parent's child, and termination of the parental rights of the parent is in the best interests of the child.

Ohio

 

Ohio Rev. Code § 3109.50 et.seq.

 

2014 SB 207

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: No parental rights

Statute:

(A) No court shall issue an order granting parental rights with respect to a child to a person who has been convicted of or pleaded guilty to rape or sexual battery and has been declared, in an action or proceeding under section 3109.501 or 3109.505 of the Revised Code regarding that child, to be the parent of a child conceived as a result of rape or sexual battery committed by the person.

(B) On receipt of a notice under section 3109.503 of the Revised Code, a court that has issued an order granting parental rights regarding the person and child addressed in the notice shall terminate the order.

Oklahoma

 

Okla. Stat. tit. 10A, § 1-4-904

Conviction: Not specified

Burden of Proof: Not specified

Context: Ground for TPR

Statute:

B. The court may terminate the rights of a parent to a child based upon the following legal grounds:

11. A finding that the child was conceived as a result of rape perpetrated by the parent whose rights are sought to be terminated;

Oregon

 

Or. Rev. Stat. § 419B.510

 

2011 SB 522

Conviction: Yes

Burden of Proof: Not specified

Context: TPR allowed

Statute:

(1) The rights of the parent may be terminated as provided in ORS 419B.500 if the court finds that the child or ward was conceived as the result of an act that led to the parent's conviction for rape under ORS 163.365 or 163.375 or other comparable law of another jurisdiction.

(2) Termination of parental rights under subsection (1) of this section does not relieve the parent of any obligation to pay child support.

(3) Termination of parental rights under subsection (1) of this section is an independent basis for termination of parental rights and the court need not make any of the considerations or findings described in ORS 419B.502, 419B.504, 419B.506 or 419B.508.

Oregon

 

Or. Rev. Stat. § 107.137

Conviction: Yes

Burden of Proof: Not specified

Context: Best interest factor in determining child custody

Statute:

(6)(a) The court determining custody of a minor child under ORS 107.105 or 107.135 shall not award sole or joint custody of the child to a parent if:

(A) The court finds that the parent has been convicted of rape under ORS 163.365 or 163.375 or other comparable law of another jurisdiction; and

(B) The rape resulted in the conception of the child.

(b) A denial of custody under this subsection does not relieve the parent of any obligation to pay child support.

Pennsylvania

 

Pa. Cons. Stat. tit. 23, § 2511

 

Pa. Cons. Stat. tit. 23, § 4321

 

1992 HB 79

2015 SB 663

Conviction: Not specified

Burden of Proof: Not specified

Context: Adoption; ground for TPR

Statutes:

Pa. Cons. Stat. tit. 23, § 2511

(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (7) The parent is the father of a child conceived as a result of a rape or incest.

 

Pa. Cons. Stat. tit. 23, § 4321: still liable for child support

Pennsylvania

 

Pa. Cons. Stat. tit. 23, § 5329

 

Pa. Cons. Stat. tit. 23, § 4321

 

1992 HB 79

2015 SB 663

Conviction: Yes

Burden of Proof: Not specified

Context: Factor for custody determination

Statute:

(b.1) Parent convicted of certain sexual offenses.--

(1) Notwithstanding any provision of this chapter to the contrary and subject to paragraph (2), if a parent who is a victim of any of the offenses set forth in this paragraph objects, no court shall award any type of custody set forth in section 5323 (relating to award of custody) to the other parent of a child conceived as a result of any of the following offenses for which the other parent has been convicted:

18 Pa.C.S. § 3121, 18 Pa.C.S. § 3122.1, 18 Pa.C.S. § 3124.1, where the offense involved sexual intercourse, 18 Pa.C.S. § 3124.2 (relating to institutional sexual assault), where the offense involved sexual intercourse, 18 Pa.C.S. § 4302.

(2) A court may award any type of custody set forth in section 5323 to a parent who has been convicted of an offense under paragraph (1) if:

(i) the parent who is a victim had an opportunity to address the court;

(ii) the child is of suitable age and consents to the custody order; and

(iii) the court determines the award is in the best interest of the child.

(3) Paternity of the child shall be established by voluntary acknowledgment of paternity or blood, genetic or other paternity testing acceptable to the court. The cost of the testing shall be borne by the parent who was convicted of the offense

Rhode Island

 

R.I. Gen. Laws § 15-5-16

 

2013 SB 43

2013 HB 6231

Conviction: Yes

Burden of Proof: Not specified

Context: Prohibition on custody and visitation

Statute:

(d) (4) No person shall be granted custody of or visitation with a child if that person has been convicted under or pled nolo contendere to a violation of §§ 11-37-2, 11-37-4, or 11-37-8.1 or other comparable law of another jurisdiction, and the child was conceived as a result of that violation; unless after hearing the family court finds that the natural mother or legal guardian consents to visitation with the child, and the court determines that visitation is in the best interest of the child, then the court may order supervised visitation and counseling.

South Carolina

 

S.C. Code § 63-7-2570

Conviction: Yes

Burden of Proof: Not specified

Context: Grounds for TPR

Statute:

The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:

(11) Conception of a child as a result of the criminal sexual conduct of a biological parent, as found by a court of competent jurisdiction, is grounds for terminating the rights of that biological parent, unless the sentencing court makes specific findings on the record that the conviction resulted from consensual sexual conduct when neither the victim nor the actor were younger than fourteen years of age nor older than eighteen years of age at the time of the offense.

South Dakota

 

S.D. Codified Laws § 25-4A-20

 

2019 SB 143

Conviction: No.

Burden of Proof: Clear and convincing evidence.

Context: Revocation of visitation rights.

Statute:

There shall be a rebuttable presumption that it is not in the best interest of the child for the court to place the child in the custody of or to grant visitation rights to a person that the court has found by a standard of clear and convincing evidence to have committed an act of rape or incest against the other parent that resulted in the conception of the child. The court may revoke visitation rights upon such a finding.

Tennessee

 

Tenn. Code Ann. § 36-1-113

 

2010 HB 4139

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: Adoption; grounds for TPR

Statute:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:

(10)(A) The parent has been convicted of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, or rape of a child pursuant to § 39-13-522, from which crime the child was conceived. A certified copy of the conviction suffices to prove this ground;

(B) When one (1) of the child's parents has been convicted of one (1) of the offenses specified in subdivision (g)(10)(A), the child's other parent shall have standing to file a petition to terminate the parental rights of the convicted parent. Nothing in this section shall give a parent standing to file a petition to terminate parental rights based on grounds other than those listed in this subdivision (g)(10) or subdivision (g)(11) or (g)(15);

Tennessee

 

Tenn. Code Ann. § 36-6-102

 

2010 HB 4139

Conviction: Yes

Burden of Proof: Not specified

Context: Prohibition on custody and visitation

Statute:

(a) Except as provided in subsection (b), any person who has been convicted of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, or rape of a child pursuant to § 39-13-522, from which crime a child was conceived shall not have custody or visitation rights, or the rights of inheritance with respect to that child.

(b) The other parent of the child may waive the protection afforded under subsection (a) regarding visitation and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.

(c) Unless waived by the other parent and, if contributing toward support of the child, the department of human services, a court shall establish a child support obligation against the father of the child pursuant to chapter 5, part 1 of this title.

Texas

 

Tex. Fam. Code § 161.007

 

1997 HB 1091

Conviction: No

Burden of Proof: Clear and convincing evidence

Context: Grounds for TPR

Statute:

(a) Except as provided by Subsection (b), the court shall order the termination of the parent-child relationship of a parent and a child if the court finds by clear and convincing evidence that:

(1) the parent has engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code;

(2) as a direct result of the conduct described by Subdivision (1), the victim of the conduct became pregnant with the parent's child; and

(3) termination is in the best interest of the child.

(b) If, for the two years after the birth of the child, the parent was married to or cohabiting with the other parent of the child, the court may order the termination of the parent-child relationship of the parent and the child if the court finds that:

(1) the parent has been convicted of an offense committed under Section 21.02, 22.011, 22.021, or 25.02, Penal Code;

(2) as a direct result of the commission of the offense by the parent, the other parent became pregnant with the child; and

(3) termination is in the best interest of the child.

Texas

 

Tex. Fam. Code § 161.001

 

2017 SB 77

Conviction: Yes

Burden of Proof: Clear and convincing evidence

Context: Grounds for TPR

Statute:

(b) The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

(T) been convicted of:

(iv) the sexual assault of the other parent of the child under Section 22.011 or 22.021, Penal Code, or under a law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 22.011 or 22.021, Penal Code;

(2) that termination is in the best interest of the child.

Utah

 

Utah Code Ann. § 76-5-414

 

2013 HB 152

Conviction: Yes

Burden of Proof: Not specified

Context: Criminal code; prohibition on custody and parenting time

Statute:

(1) A person convicted of a violation of Title 76, Chapter 5, Part 4, Sexual Offenses, except for Sections 76-5-401 and 76-5-401.2, that results in conception of a child may not be granted custody or parent-time rights by a court regarding the child, unless:

(a) the nonconvicted biological parent or legal guardian of the child consents and the court determines it is in the best interest of the child to award custody or parent-time to the convicted person; or

(b) after the date of the conviction, the biological parents cohabit and establish a mutual custodial environment for the child.

(2) A denial of custody or parent-time under this section may not in and of itself:

(a) terminate the parental rights of the person denied parent-time or custody; or

(b) affect the obligation of the convicted person to financially support the child.

Vermont

 

Vt. Stat. Ann. tit. 15, § 665

 

2014 HB 88

2017 HB 603

Conviction: No.

Burden of Proof: Clear and convincing evidence.

Context: Grounds for TPR and restriction of parent-child contact.

Statute:

(f) The State has a compelling interest in not forcing a victim of sexual assault or sexual exploitation to continue an ongoing relationship with the perpetrator of the abuse. Such continued interaction can have traumatic psychological effects on the victim, making recovery more difficult, and negatively affect the victim's ability to parent and to provide for the best interests of the child. Additionally, the State recognizes that a perpetrator may use the threat of pursuing parental rights and responsibilities to coerce a victim into not reporting or not assisting in the prosecution of the perpetrator for the sexual assault or sexual exploitation, or to harass, intimidate, or manipulate the victim.

(1) The court may enter an order awarding sole parental rights and responsibilities to a parent and denying all parent-child contact with the other parent if the court finds by clear and convincing evidence that the nonmoving parent was convicted of sexually assaulting the moving parent and the child was conceived as a result of the sexual assault, or that the nonmoving parent was convicted of human trafficking pursuant to 13 V.S.A. § 2652, and the moving parent was the trafficked victim. As used in this subdivision, sexual assault shall include sexual assault as provided in 13 V.S.A. § 3252(a), (b), (d), and (e), aggravated sexual assault as provided in 13 V.S.A. § 3253, aggravated sexual assault of a child as provided in 13 V.S.A. § 3253a, lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602, and similar offenses in other jurisdictions.

(2) The court may enter an order awarding sole parental rights and responsibilities to one parent and denying all parent-child contact between the other parent and a child if the court finds by clear and convincing evidence that the child was conceived as a result of the nonmoving parent sexually assaulting or sexually exploiting the moving parent, or that the moving parent was trafficked by the nonmoving parent pursuant to 13 V.S.A. § 2652 and the court finds by a preponderance of the evidence that such an order is in the best interests of the child. A conviction is not required under this subdivision, and the court may consider other evidence of sexual assault or sexual exploitation in making its determination. For purposes of this subdivision:

(A) sexual assault shall include sexual assault as provided in 13 V.S.A. § 3252, aggravated sexual assault as provided in 13 V.S.A. § 3253, aggravated sexual assault of a child as provided in 13 V.S.A. § 3253a, lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602, and similar offenses in other jurisdictions; and

(B) sexual exploitation shall include sexual exploitation of an inmate as provided in 13 V.S.A. § 3257, sexual exploitation of a minor as provided in 13 V.S.A. § 3258, sexual abuse of a vulnerable adult as provided in 13 V.S.A. § 1379, and similar offenses in other jurisdictions.

Virginia

 

Va. Code § 20-124.1

Conviction: Yes

Burden of Proof: Not specified

Context: Child custody

Statute:

“Person with a legitimate interest” shall be broadly construed and includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.

Washington

 

Wash. Rev. Code § 13-34-132

 

2000 SB 6217

Conviction: Yes

Burden of Proof: Clear and convincing

Context: TPR allowed

Statute:

A court may order that a petition seeking termination of the parent and child relationship be filed if the following requirements are met:

(1) The court has removed the child from his or her home pursuant to RCW 13.34.130;

(2) Termination is recommended by the department or the supervising agency;

(3) Termination is in the best interests of the child; and

(4) Because of the existence of aggravated circumstances, reasonable efforts to unify the family are not required. Notwithstanding the existence of aggravated circumstances, reasonable efforts may be required if the court or department determines it is in the best interests of the child. In determining whether aggravated circumstances exist by clear, cogent, and convincing evidence, the court shall consider one or more of the following:

(j) Conviction of the parent, when a child has been born of the offense, of: (A) A sex offense under chapter 9A.44 RCW; or (B) incest under RCW 9A.64.020.

Washington

 

Wash. Rev. Code § 26.26A.465

 

2017 HB 1543

Conviction: No

Burden of Proof: A conviction or guilty plea of sexual assault; or clear, cogent, and convincing evidence.

Context: Grounds for TPR

Statute:

(2) In a proceeding in which a parent alleges that a person committed a sexual assault that resulted in the parent becoming pregnant and subsequently giving birth to a child, the parent may seek to preclude the person from establishing or maintaining the person's parentage of the child. A parent who alleges that a child was born as a result of sexual assault may also seek additional relief as described in this section.
 

(6) An allegation under subsection (2) of this section may be proved by:

 

(a) Evidence that the person was convicted of or pleaded guilty to a sexual assault under RCW 9A.44.0409A.44.050, or 9A.44.060, or a comparable crime of sexual assault, including child rape of any degree, in this state or any other jurisdiction, against the child's parent and the child was born within three hundred twenty days after the sexual assault; or

 

(b) Clear, cogent, and convincing evidence that the person committed sexual assault, as defined in this section, against the child's parent and the child was born within three hundred twenty days after the sexual assault.

 

(7) Subject to subsections (1) through (5) of this section, if the court determines that an allegation has been proved under subsection (6) of this section at the fact-finding hearing or after a bench trial, the court shall:

 

(a) Adjudicate that the person described in subsection (2) of this section is not a parent of the child, has no right to residential time or decision-making responsibilities for the child, has no right to inheritance from the child, and has no right to notification of, or standing to object to, the adoption of the child. If the parent who was the victim of the sexual assault expressly consents in writing for the court to decline to enter one or more of these restrictions or limitations, the court may do so;

 

(b) Require the state registrar of vital statistics to amend the birth record if requested by the parent and the court determines that the amendment is in the best interest of the child; and

 

(c) Require the person pay to child support, birth-related costs, or both, unless the parent requests otherwise and the court determines that granting the request is in the best interest of the child.

 

(8) The child's parent or guardian may decline an order for child support or birth-related costs. If the child's parent or guardian declines an order for child support, and is either currently receiving public assistance or later applies for it for the child born as a result of the sexual assault, support enforcement agencies as defined in this chapter shall not file administrative or court proceedings to establish or collect child support, including medical support, from the person described in subsection (2) of this section.

 

(9) If the court enters an order under subsection (8) of this section providing that no child support obligation may be established or collected from the person described in subsection (2) of this section, the court shall forward a copy of the order to the Washington state support registry.

 

(10) The court may order an award of attorneys' fees under this section on the same basis as attorneys' fees are awarded under RCW 26.09.140.

 

(11) Any party may move to close the fact-finding hearing and any related proceedings under this section to the public. If no party files such a motion, the court shall determine on its own initiative whether the fact-finding hearing and any related proceedings under this section should be closed to the public. Upon finding good cause for closing the proceeding, and if consistent with Article I, section 10 of the state Constitution, the court may:

 

(a) Restrict admission to only those persons whom the court finds to have a direct interest in the case or in the work of the court, including witnesses deemed necessary to the disposition of the case; and

 

(b) Restrict persons who are admitted from disclosing any information obtained at the hearing that would identify the parties involved or the child.

 

West Virginia

 

W. Va. Code § 48-9-209a

 

2014 HB 4139

Conviction: Yes

Burden of Proof: Not specified

Context: No custodial responsibility or parenting time

Statute:

(a) Except as otherwise provided in this section, if a child custodial responsibility or parenting time dispute involves a child who is conceived as a result of acts by which one of the child's biological parents has been convicted of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code, the court shall not allocate custodial responsibility to the biological parent convicted of the sexual assault, and the convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that it is in the best interests of the child, adequately protects the child and the victim of the sexual offense and that the person or persons with custodial responsibility of the child consent thereto.

(b) Subsection (a) does not apply if:

(1) The biological parents are husband and wife at the time of the offense and, after the date of conviction, cohabit and establish a mutual custodial environment for the child; or

(2) After the date of conviction, the unmarried biological parents cohabit and establish a mutual custodial environment for the child.

(c) If persons described by subsection (b) of this section later separate or divorce, the conviction of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code creates a rebuttable presumption that exclusive or shared custodial responsibility of the child by the perpetrator of the offense is not in the best interests of the child. The convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that, despite the rebuttable presumption required by this subsection, a custodial responsibility or parenting time arrangement with the convicted parent is in the best interests of the child, adequately protects the child and the victim of the sexual offense, and that the victim of the sexual offense consents thereto.

(d) A denial of custodial responsibility or parenting time under this section does not by itself terminate the parental rights of the person denied custodial responsibility or parenting time, nor does it affect the obligation of the person to support the minor child.

Wisconsin

 

Wis. Stat. Ann. § 48.415

Conviction: Yes

Burden of Proof: Not specified

Context: Ground for TPR

Statute:

At the fact-finding hearing the court or jury shall determine whether grounds exist for the termination of parental rights. If the child is an Indian child, the court or jury shall also determine at the fact-finding hearing whether continued custody of the Indian child by the Indian child's parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child under s. 48.028(4)(e)1. and whether active efforts under s. 48.028(4)(e)2. have been made to prevent the breakup of the Indian child's family and whether those efforts have proved unsuccessful, unless partial summary judgment on the grounds for termination of parental rights is granted, in which case the court shall make those determinations at the dispositional hearing. Grounds for termination of parental rights shall be one of the following:

(9) Parenthood as a result of sexual assault. (a) Parenthood as a result of sexual assault, which shall be established by proving that the child was conceived as a result of a sexual assault in violation of s. 940.225(1), (2) or (3), 948.02(1) or (2), 948.025, or 948.085. Conception as a result of sexual assault as specified in this paragraph may be proved by a final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father of the child committed, during a possible time of conception, a sexual assault as specified in this paragraph against the mother of the child.

(b) If the conviction or other evidence specified in par. (a) indicates that the child was conceived as a result of a sexual assault in violation of s. 948.02(1) or (2) or 948.085, the mother of the child may be heard on her desire for the termination of the father's parental rights.

Wyoming

 

Wyo. Stat. § 14-2-309

 

Conviction: Yes

 

Burden of Proof: Clear and Convincing Evidence

 

Context: Ground for TPR

 

Statute:

 

(a) The parent–child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:

 

(ix) The parent committed sexual assault and the child was conceived as a result of the sexual assault. For the purposes of this paragraph, the following shall apply:

 

(A) A person committed sexual assault if the person was convicted of an offense under W.S. 6-2-302, 6-2-303, 6-2-314 through 6-2-316 or other similar law of another jurisdiction;

 

(B) Reasonable effort to reunify the family is not required to terminate parental rights;

 

(C) This paragraph shall not apply if the parent seeking termination was married to or cohabiting with the parent committing the sexual assault resulting in the birth of the child for not less than two (2) years immediately after the birth of the child. Nothing in this subparagraph shall be construed as limiting a parent from seeking termination under another provision of this section or from seeking sole custody under title 20, chapter 5 of the Wyoming statutes.

 

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About This NCSL Project

NCSL staff in D.C. and Denver can provide comprehensive, thorough, and timely information on critical child support policy issues. We provide services to legislators and staff working to improve state policies affecting children and their families. NCSL's online clearinghouse for state legislators includes resources on child support policy, financing, laws, research and promising practices. Technical assistance visits to states are available to any state legislature that would like training or assistance related to this topic.

The Denver-based child support project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or cyf-info@ncsl.org.

NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child support issues before Congress and the Administration. Staff in D.C. can be reached at (202) 624-5400 or cyf-info@ncsl.org.

The child support project and D.C. human services staff receive guidance and support from NCSL's Standing Committee on Health & Human Services.

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