What legal right does my rapist has to file for custody of my daughter? 25 Answers as of September 09, 2012

I conceived my daughter in an abusive rape occurrence. She is now 8 years old and I am married and my husband has filed an affidavit of paternity and has claimed himself as the biological father.

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John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
That question is not clearly answered in the law and you really don't need to be concerned unless and until he actually files something. If you were married at the time of birth, your husband would be the presumed father and need not do anything unless and until someone challenges that presumption. If you were not married at the time of birth, your husband can't simply sign an affidavit. You need to contact the vital statistics office that issued the child's birth certificate to determine applicable requirements to change the birth certificate to show your husband as the father. That may or may not require some court action.
Answer Applies to: Colorado
Replied: 9/9/2012
John Russo | John Russo
Depends on your jurisdiction in matters where the husband puts his name on birth certificate and years later someone comes out of wood work claiming to be father and wants a DNA test for paternity, now don't get nervous.

Here in RI take your facts but leave out the word rapist, and 8 years later the real father shows up challenging paternity, here he does not have a chance, and I would think the same outcome would happen in most jurisdictions in this country.

The case law here would be on your husbands side without going into detail, now add the word rapist to the mix and I would feel confident in saying that no court would ever entertain a paternity action based upon your facts. So in the end relax your in good shape!
Answer Applies to: Rhode Island
Replied: 8/20/2012
Attorney At Law | Harry D. Roth
If the rapist was charged and convicted he has no rights. If you were married at the time you conceived the child, and your husband does not object to being the legal father by the time the child is age 3 or the biological father does not make that request, then your husband is already the legal father. This is true regardless of the circumstances of the act of intercourse that resulted in the conception.
Answer Applies to: California
Replied: 8/20/2012
Law Office of Melvin Franke | Melvin Franke
Every right. You need to hire an experienced attorney and file for your husband to adopt your daughter.
Answer Applies to: Missouri
Replied: 8/20/2012
Buchholdt Law Offices | Jon M. Buchholdt
If he is the father of your daughter, he has a legal right to prove his paternity and to complain for custody.
Answer Applies to: Alaska
Replied: 8/20/2012
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    I can not answer this without looking at it. I do not believe the rapist will be able to make any claims to paternity and for visitation, if he was convicted of rape or sexual assault. How to get your husband declared the legal father is the question that will take some research and work. Give me a call if you want me to help you, RFD Please confirm receipt of this message, by reply e-mail.
    Answer Applies to: New Jersey
    Replied: 8/20/2012
    Victor Varga | Victor Varga
    Unfortunately, as the biological father, he can at least file for custody. However, due to the circumstances, there is no way he would be awarded custody.

    The court will decide what's in the best interest of the child, and that is clearly not in the child's best interest. Your husband should file for adoption.
    Answer Applies to: Maryland
    Replied: 8/20/2012
    Steven Harrell, Attorney at Law | Waymon Steven Harrell
    He has no rights unless he legitimates the child. Your husband should go ahead and file a stepparent adoption ASAP, unless you were legally married at the time of the rape, then your husband is presumed by law to be the father of the child.
    Answer Applies to: Georgia
    Replied: 8/20/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    He would have to file a paternity action and prove he was the father to do anything.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Dennis P. Mikko Attorney at Law | Dennis P. Mikko
    Was the rapist ever charged and/or convicted? If yes, then a person who has conceived a child through a rape would have no rights to the child.

    If the rapist is trying to obtain rights, you should defend by stating the child was conceived through a rape.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    T.K. Byrne | Timothy K. Byrne
    Was he convicted of the rape? That will impact this decision.
    Answer Applies to: Mississippi
    Replied: 8/20/2012
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You need to see a lawyer, but it does not help that your husband has committed a crime in falsely claiming paternity.
    Answer Applies to: Georgia
    Replied: 8/20/2012
    Law Office of Margaret D. Wilson
    Law Office of Margaret D. Wilson | Margaret Wilson
    There is not enough information presented. However, assuming that your husband filed the Affidavit of Paternity shortly after your daughter was born.

    As a result, he is presumed to be the father regardless of who the biological father is. A person wishing to contest the Affidavit of Paternity must do so within two years after the child is born.

    If the above doesn't apply a case on point is Shepherd v. Clemens, 752 A.2d 533 (Del. 2000).

    In that case the court concluded that if a child is conceived as a result of rape as define by law, then the biological father should not be permitted visitation. I'm currently not aware of any California cases on point.
    Answer Applies to: California
    Replied: 8/20/2012
    Law Offices of Helene Ellenbogen, P.S.H | Helene Ellenbogen
    Your husband should not be claiming to be the bio father if he isn't as that would be perjury. However, He can adopt your daughter and then have a new birth certificate issued naming him as the father.
    Answer Applies to: Washington
    Replied: 8/20/2012
    The Law Offices of Tres A. Porter | Tres A. Porter
    If he has been convicted of rape, by law he has no rights to the child.

    In addition, if the father is your husband and signed a declaration of paternity there is a legal presumption that he is the father of the child.
    Answer Applies to: California
    Replied: 8/20/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    He may always seek to establish paternity and parenting time. Of course, any criminal record would be considered as part of the action as to whether parenting time is appropriate.
    Answer Applies to: Minnesota
    Replied: 8/20/2012
    Steven Alpers | Steven Alpers
    A rapist could file for custody but because of the rape if he was convicted he will get no custody.
    Answer Applies to: California
    Replied: 8/20/2012
    Mike Yeksavich | Mike Yeksavich
    Was he ever prosecuted and convicted of rape? Why have you waited so long to file for adoption? Why would your husband and you file a false affidavit of paternity?

    A biological father has every right to file for custody but simply filing does not mean he will win. Talk to a lawyer about adoption.
    Answer Applies to: Oklahoma
    Replied: 8/20/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    I would seriously doubt any rapist, especially under your circumstances, would have any rights there.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Ezim Law Firm | Dean Esposito
    He has no right to custody due to the rape.
    Answer Applies to: Louisiana
    Replied: 8/20/2012
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    You'll want to immediately seek orders restricting his contact to the minimum and only under safe conditions.
    Answer Applies to: Washington
    Replied: 8/20/2012
    The Law Offices of Dave Hawkins
    The Law Offices of Dave Hawkins | Dave Hawkins
    Well, if you husband is not the biological father and knowingly signed an affidavit stating otherwise, he has committed perjury.

    There is a proper way to do things. There are a number of actions the biological Father can take, but you need to see a family law attorney to correct the mistake made by your husband. .
    Answer Applies to: Washington
    Replied: 8/20/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    Your husband can be declared the presumed father by taking the child into his home and declaring the child to the world as his own.
    Answer Applies to: California
    Replied: 8/20/2012
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