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Child Custody or Visitation after Rape

Rape, "legitimate" or not, is the topic in the news as the 2012 Republican Convention is about to begin. However, another aspect that Rhode Islanders should understand and consider is that the rapist is entitled to make a claim child custody or the joint custody of the child or for visitation rights with the child.

In a majority of states, men who father a child through rape are able to claim the same custodial and visitation rights concerning the child as any other father. When no law prohibits a rapist from exercising those rights, a woman victim may be forced to bargain away her rights to a criminal trial in exchange for the rapist dropping his bid for access to the child. Or she may be forced to go through a Family Court proceeding fighting against allowing the rapist those rights. A convicted rapist behind bars or who has been paroled has the right to petition the Family Court for visitation rights, forcing the victim-mother to undergo another legal process.

Rhode Island statutes do not contain a prohibition on a rapist's parental rights. There is language that in regulating custody and visitation, the Rhode Island Family Court may consider why the right to shared custody and visitation should not be granted.

The physically or sexually abuse of the child by the natural parent constitutes sufficient cause under the law to deny the right of visitation; but during a rape, the child is not the victiom.  And when there has been such abuse of the child, the Court must review the case annually to determine if the parent had taken any actions towards rehabilitation.

There is no similar Rhode Island law that protects the victim from the rapist's demand to visit with the child and have a say in the child's upbringing.  The mother must fight that battle in the courtroom.

A Rhode Island statute does provide that when considering custody and visitation issues of a child, the court must consider evidence of past or present domestic violence; where domestic violence is proven, the grant of visitation "shall be arranged" to best protect the child and abused parent from further harm.  Thus, visitation may be permitted.

However, "domestic violence" is defined in such a way as to include certain acts "between spouses or people who have a child together". Unless the rape is the forceful sexual act in a marriage, one must question if protection would apply to strangers who had no children at the time of the rape.  In other words, if the rape does not meet the definition of domestic abuse, the statute does not provide the victim with any relief except for battling in Court why joint custody or visitation would be inappropriate.

When the rape victim is caught in this scenario, call us to represent for representation in your Rhode Island child custody or visitatin defense.

See: "Raped, pregnant and ordeal not over" by Shauna Prewitt, reported by CNN on Aug. 22, 2012, 

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Law Office of Steven J. Hirsch, Esq

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