Does the father have any child custody rights? 13 Answers as of May 10, 2011

If a child is conceived through rape in a marriage during divorce process, can the ex husband who raped the wife and is not named as father on birth certificate take the child?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Since you were married at the time, he is the "putative father" that is the legal term for assumed father and as a putative father, yes, he has rights.
Answer Applies to: Texas
Replied: 5/10/2011
Law Office of John C. Volz
Law Office of John C. Volz | John C. Volz
You should seek legal counsel. If there is a conviction for the sexual assault, then there is a presumption against custody. The court will look at all the factors in the criminal file prior to determining any type of rights.
Answer Applies to: California
Replied: 5/9/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
Assuming your facts are proven to the satisfaction of the divorce judge as stated, I'd be doubtful that the father would be successful. Stay well.
Answer Applies to: Alabama
Replied: 5/6/2011
The Sampaio Law Firm, PA
The Sampaio Law Firm, PA | Sasha M. Sampaio
The law presumes the paternity of a child as the mother's husband during marriage; however this presumption can be rebutted. The final judgment in the divorce or the marital settlement agreement should have addressed the custody of the then unborn child. Assuming this was not done in this case, and that the child is actually the biological son of the ex-husband, the question is whether the ex-husband has filed a paternity action within the statutory time period since his name is not on the birth certificate. In short, he cannot simply "take the child" without some legal right to do so.
Answer Applies to: Florida
Replied: 5/6/2011
Glenn E. Tanner
Glenn E. Tanner | Glenn E. Tanner
If the husband is "ex" and the child was conceived during marriage, then no doubt the parenting plan says what is or is not the rights of the father. Look at the parenting plan.
Answer Applies to: Washington
Replied: 5/6/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Your situation appears to be a little too complicated for a simple answer. Generally, until there is some form of court order, there are no specific "legal" rules that you have to follow and the father has no specific "legal" rights to control you or the child. You need to consult an attorney and have your question decided in the divorce case itself.
    Answer Applies to: Colorado
    Replied: 5/6/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    He has parental rights as the father. You can seek to terminate them under the circumstances
    Answer Applies to: Connecticut
    Replied: 5/6/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    If the child is conceived during the marriage, the husband is the presumptive father under law and he may assert his rights to custody and/or parenting time. Courts make such determinations based on a best interests of the child standard.
    Answer Applies to: Minnesota
    Replied: 5/6/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    In Washington, if the child was conceived during the marriage, then the spouse at the time is presumed to be the father of the child. In the divorce process there should have been court orders entered either determining the ex spouse not to be the parent of the child or establishing a parenting plan which determines the rights each parent has to the child. If that was not done, then you need to go back to court to have it done.
    Answer Applies to: Washington
    Replied: 5/6/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    Rape? Take the child? You have described some really horrible things. You need to talk to a lawyer and get some advice right away. No, the father can not just walk in and take the child away from the mother who is raising the child. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 5/6/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    A rapist is not entitled to the custody of a child who was the product of rape. However, you will need to provide adequate proof to the Court of the rape - if the rapist was convicted of rape, the conviction records would suffice. If he wasn't convicted of rape, it could be far more difficult. You should have at least sought Domestic Violence Restraining Orders against him right after the rape. You should retain or at least consult with an experienced Family Law Attorney regarding your situation.
    Answer Applies to: California
    Replied: 5/5/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    In Washington State, the court will consider the best interests of the child when establishing a parenting plan.
    Answer Applies to: Washington
    Replied: 5/5/2011
    Ciccarelli Law Offices
    Ciccarelli Law Offices | Lee Ciccarelli
    You need to make an important decision and hire a divorce lawyer you can trust to be vigilant, aggressive, reasonable and affordable. You make that decision by speaking to him and listening.
    Answer Applies to: Pennsylvania
    Replied: 5/5/2011
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