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?
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
By RUTH RENDON
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.