Sunday, June 11, 2006

State Laws Need to be Changed

Yet another sad case of a rapist getting custody of a child. States should change their laws so this doesn’t happen. Actually I think both parents should have had their rights terminated and the child should have been placed for adoption; yet the laws in most states only allow for automatic termination of the parental rights of convicted first and second-degree rapists (which involves the use of a weapon or some severe level of injury, I believe).

As we see below even a liberal state like New York allows for rapists to petition the court for custody:

“…New York law recognizes certain parental rights for individuals guilty of statutory rape, as opposed to forcible rape, whereas New Mexico does not. In In re Craig "V" v. Mia "W", 500 N.Y.S.2d 568, 569 (N.Y. App. Div. 1986), relied upon by Respondent, the court held that an individual who has fathered a child by virtue of sexual intercourse which was consensual, albeit perpetrated under circumstances constituting statutory rape, is not precluded under New York law from bringing a paternity proceeding.

The New York court based its ruling primarily on the fact that "the legislative proscription against the right to notice in a proceeding affecting an out-of-wedlock child is limited to a father convicted of the crime of rape in the first degree, which involves forcible compulsion." Id. (citations omitted). The court observed that the New York Legislature "specifically declined to extend this limitation to the father of a child who may have been conceived as the result of any lesser degree of rape or sexual misconduct."*

*Information courtesy of FindLaw for Legal Professionals Case No. 95-2053

It appears that since more women are the victims of rape (statutory and otherwise) then men, women were generally more likely to be the victims of these laws. Interestingly enough I never heard of this issue being mentioned before as being such a problem for the nation. I guess as long as women were the only victims, it was considered fine. Another example of a sad oversight in the law, but nothing could be done about it.

Now it’s an issue since a female statutory rapist has gotten custody of the resultant child.


"I know the judge agonized over it but how does a registered sex offender get custody?" said Butch Bradt, Gallardo's attorney."

Well check your state laws Butch. Men convicted of statutory rape in practically every state in the union are eligible for and given custody all the time under the exact same circumstances. It's a pity you didn't think to change that law BEFORE this happened. I guess it wasn't an important enough issue for you then, was it?

Oh well.

So since we’re on the subject, I suggest that we change ALL the state laws so that NO convicted rapist, whether statutory, first, second or whatever degree of rape is committed, is EVER eligible for custody of the resultant child.

Let’s finally bring some common sense and consistency to these situations.

June 7, 2006, 9:03PM

Teacher who had child with teen retains custody


Copyright 2006 Houston Chronicle

The mother of a 3-year-old girl fathered with a 13-year-old student will retain custody of the child although the father will get visitation.

After two days of testimony, state District Judge Doug Warne ordered Lisa Zuniga Duran, 30, to continue caring for the child as the primary parent although the girl's father, Andrew Gallardo, 17, of Edmond, Okla., will be allowed to see the child.

Duran was pregnant when she pleaded guilty to aggravated assault of a child in January 2003. She admitted to having a sexual relationship with Gallardo while he was a student and she was a teacher's aide at Victory Academy in Pasadena.

"I know the judge agonized over it but how does a registered sex offender get custody?" said Butch Bradt, Gallardo's attorney. "If she (Duran) were a man, he would not get custody."

Duran has had custody of the child since she gave birth in February 2003. She has since married and has another daughter.

"It's a great decision," Helen Simotas, Duran's attorney said. "It was a struggle, but a struggle that needed to be taken. We have always encouraged Andrew to have a relationship with the child."

Gallardo visited with the child for the first time in two years on Tuesday after Warne orchestrated a reunion.

"His behavior in his role of a father has been immature," Warne said of Gallardo not agreeing to supervised visits. "He is, however, 17. He's the 17-year-old father of a 3-year-old due to the reprehensible conduct of the mother."

The judge's order calls for Gallardo to see his daughter two weekends a month with someone familiar to the child present. Starting in September, the visitation period will be extended with visits unsupervised beginning in November. In June 2007, Gallardo will be able to have his daughter for a week.

Ambriz, the child's paternal grandmother, will be allowed visitation starting in September.

"I'm glad my son has the right to see his daughter but I don't think it's fair that I have to wait to see my granddaughter," she said.

Gallardo, who will turn 18 next month, was ordered to pay Duran $50 a month in child support. He graduated from high school last month, has plans to get a full-time job and attend college to help support his daughter and the son his girlfriend is expecting next month. The judge ordered him to take a parenting class by September.

Duran received deferred adjudication, which requires her to complete 10 years' probation to avoid having a criminal record. Warne ordered her to pay $5,000 to a court-appointed attorney assigned to look after the best interest of the 3-year-old child.


Anonymous said...

I will be the first to say that I didn't read the article in it's entirety. I read only as far as to know what it was about. I have to disagree with people who think that someone convicted of statutory rape doesn't deserve to have any parental rights. I actually think the notion is ridiculous.

The biggest problem is that people convicted of statutory rape shouldn't be on the sex offenders registry in the first place. The sexual offense they have committed is NOT tantamount to rape or child molestation. The registry should also be more clear and seperate the individuals on the registry by the crime they have commiteed. Be honest...if you saw your neighbor on the registry, wouldn't you assume he was the creepy guy who molested a 3 year old? (Or something very similar). If you're being honest, the answer is yes.

My brother is on the sex offenders registry and all because the girl was 2 weeks too young to legally give consent. She consented none-the-less but the state doesn't recognize her ability to do so. Since I think that is a ridiculous reason for being put on the registry then maybe I'll start something else equally as absurd. The alcohol offenders registry. Anyone convicted of DUI will be put on it, drunk and disorderly conduct, public intoxication AND anyone under 21 years of age who was arrested for DUI, as well as anyone who supplies minors with alcohol (and for the purposes of this statement I am using minors to mean anybody under 21). I know none of you believe that a 19 year old having a beer at a party is as bad as a 30 year old driving drunk and causing a fatal accident. Right? Common sense tells you how ridiculous it is to put them in the same category of people. Same thing with statutory rape. It is not the same thing as rape and needs to stop being treated as such.

It's also time people got off their high horse and stood up to make the laws just. That is, afterall, what the JUSTICE system is supposed to be about.

NYMOM said...

Your brother's case was unfortunate; however, I still think people (either men or women) convicted of rape, statutory or otherwise, should not be eligible for custody.

The problem is many of these situations involve a much wider disparity in ages then just a two week difference where the younger person is just two weeks away from 17 or 18 years. That's not the usual scenario. Thus, we cannot make universal laws that will impact just a few people, such as your brother. We must look at the totality of these situations and make laws fair for MOST of the rest of us, not just for a few odd cases.

Do you realize I have a friend whose daughter was taken advantage of by a man in his 30s when she was just 14 years old. My friend, not wanting to involve the police, never pressed charges.

Now he's sorry he didn't...since this beast convinced my friend's daughter to move in with him when she was 17. Now ten years and three kids later, he just dumped her and got custody of all three children. My friend, not only has his daughter back (as a complete mess) but he can't even see his grandkids anymore...

Sad part is it's too late for my friend to press the charges he should have pressed ten years earlier.

So like I said, your brother's case is a rare one. Most cases are more reflective of my friend with much older man and younger woman being taken advantage of by some useless idiot...and the law needs to address those cases. As I find when the laws doesn't address these situations people generally have a way of addressing it themselves and it usually isn't pretty when they do...

So, if we are going to continue being a nation of laws vis-a-vis these family court situations, people need to see justice being consistently done for MOST of us...

NYMOM said...

Perhaps they shouldn't be on the sex offender registry however depending upon the ages involved. That's true...but it's a given they shouldn't have custody of any children conceived from their irresponsible acts...

Anonymous said...

Your friends case is unfortunate as well, but with that said he did have 5 years (in most states) to press charges. You're right that the laws were meant to protect children. Having said that, I still cannot back the idea of mandatory relinquishing of parental rights in statutory offenses. Let me just say that my brother and this girl did NOT have a child together, so my not defending your stance has nothing to do with that.

Anyway, in most states there are different laws for the different age groups (under 10 years old, 10-13 years old and 13-16 years old). In the states where 18 is the age of consent then I imagine the 17 and 18 year olds are included in the last age group. The most important thing for me is that if my brother has to be on the registry, which he does, the law he was convicted under should not use the word CHILD. Unless you read the entire law you would be none the wiser to the fact that he did not go pick up some 3 year old at the park. OR they should be seperated on the registry. Few people are going to take the time to look up the penal code and find out what law forced them to register and it's not right to me that he, (and approximately 62% of the people on the registry in his state who have been convicted on statutory charges), have to be grouped together with the same people who molest children. (And that virtually all of the people I have looked through who were convicted on statutory charges have pictures up on the registry while those convicted of charges involving CHILDREN have several people on the registry without pictures).

What bothers me equally as much was that when the police is his town were informed of the same girl sleeping with a guy who was 29 (10 years older than my brother) at the same time she was sleeping with my brother, they did nothing. It should not be up to the discretion of the police department. What's fair for one is fair for all.

Anyway, I have to get back to my research on having the law rewritten to classify between child molesters and statutory offenders. Have you looked into having the law rewritten in your area? If you really believe in it, you should. Regardless of whether or not you and I agree on what we think needs to change, it's time the laws were looked at again. The last time mose were reviewed was nearly 100 years ago. Times change and the laws need to change with them. Good luck, and sorry about your friends daughter.

NYMOM said...

I agree that statutory rapists should not be on a sex registry. However they should automatically be barred from custody.

What you fail to understand is that most statutory rape involves an older man and a much young girl. Entering a sexual relationship with a girl when she's too young often means she will become pregnant earlier and drop out of school; thus becoming more vulnerable to losing her kids at some point in the future should the relationship break up. She'll be behind her peers in job and educational skills forever.

Bottom line is custody should never be an option for men who chose to follow this route to getting themselves a wife or g/f.

This sex registry business has got to go's a distraction from real child molesters.

NYMOM said...

Just to let you know I'm deleting your comment as it borders on abusive.

I already give a lot of leeway on this blog to people who troll it and I'm not extending it to another blog, my opinions...if you don't like them find another blog to read. The internet is wide and you'll find someone else you agree with to read...