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Child Custody— California Courts Consideration in Making Custody Awards —Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist

This is the sixth entry in my 7-part blog series entitled “California Court’s Consideration in Making Custody Awards.”  As stated in Parts 1, 2, 3, 4 and 5,  I am writing this series due to the number of emails and calls I receive in my California Family Law Practice on a weekly basis from concerned parents regarding their California custody cases. It’s my hope to help shed a little light on this issue so that my reader is better able to navigate his/her way in the California legal system regarding their custody case.  Part 6 focuses on issues relating to crimes of parents such as when a parent  is a registered sex offender or person convicted of child abuse or convicted of rape—a look at this issue from the court’s perspective. This issue, and many others, are factors a California family-law judge will look at when making a determination on custody.

REGISTERED AS SEX OFFENDERS (OR CONVICTED OF A CHILD ABUSE CRIME)

The Law

If a parent (or person seeking custody and/or visitation) is required to register as a sex offender under California Penal Code section 290 as a result of conduct toward a victim who is a minor, or has been convicted of child abuse under California Penal Code sections 273a, 273d or 647.6, he or she may not be awarded physical custody or legal custody of, or unsupervised visitation with, any child unless the court finds that there is no significant  risk to the child and the court states its reasons in writing or “on the record”.  Further, a minor may not be put in a home in which a convicted criminal lives, nor be permitted to have unsupervised visitation with that person, unless the court states the reasons for a legal finding in writing or on the record.

No parent or non-parent may be granted physical or legal custody of, or unsupervised visits with a child if anyone residing in the persons home is required, as a result of a felony conviction (in which the victim was a minor) to register as a sex offender under California Penal Code section 290, unless the court finds there is no significant risk to the child and the court states its reasons in writing or on the record.   Further, the child may not be placed in a home in which that person lives, nor be permitted to have unsupervised visitation with that person, unless the court stats its reasons on the record on in writing.

If a child is living with a parent or non-parent in an unsupervised setting, who is required, as a result of the felony conviction in which the victim was a minor, to be registered as a sex offender under California Penal Code section 290, this shall be deemed by the court as “prima facie” evidence that the child is at significant risk of harm.  Whenever the court makes a determination regarding significant risk of a child, the prima facie evidence equates to a legal presumption affecting the burden of producing evidence.  However, this legal presumption does not apply if there are factors “mitigating” against its application, including, for instance, whether the party seeking custody or visitation is also required, as a result of a felony conviction in which the victim is a minor, to register as a sex offender under Penal code section 290. (Family Code section 3030(a)(3).

Contrast modification of custody or visitation based on a child being in the legal or physical custody of, or subject to unsupervised visitation with, a person who is required to register as a sex offender for committing a felony against a minor, or having legal or physical custody of a person who visits the child without supervision who lives with such a registered sex offender. (Family Code section 3030.5.)

 Discussion

In a nutshell, the court assumes a child is at significant risk if the child is living with a parent or third party who is a registered sex offender (against children) and/or has committed a felonious act against a minor. This is what is meant by “prima facie” evidence. So, if a party has committed such a crime, the court will require the convicted party to prove to the court that the child will not be at “significant risk” should the court award joint or sole custody and visitation to the parent who has committed the crime.  Statistically, it will be very difficult for a party to overturn such a legal presumption since the California courts tend to be extremely cautious where children are concerned. Not all is lost, however, because in some instances, while a California court may deny the convicted parent of custody, the court may allow visitation—under a supervised setting.

Anyone dealing with such issues is urged to speak with an attorney since this is a very complicated area of law—custody issues are difficult enough—adding criminal elements only compounds the issues.

 PERSON CONVICTED OF RAPING THE MOTHER

 Law

If a person has been convicted of rape under California Penal Code section 261 (rape), then that person may not be awarded custody of, or visitation with, a child conceived as a result of that violation. (Family  Code section 3030(b).  The court may not disclose, or cause to be disclosed, the custodial parent’s place of residence or employment or the child’s school unless the court findings that the disclosure would be in the child’s best interest. (Family Code section 3030(e)).

 Discussion

The law is straight-forward on this issue. Not much discussion is needed here. The purpose of this law is to prevent the rapist from seeking custody and visitation when the rapist learns of the pregnancy or birth.  This law empowers the California  courts with legal authority to prevent a rapist from being granted shared or sole custody and/or visitation. Yes, this does happen!

On another note, it is important that a raped mother protect her child from allowing the father/rapist to share legal custody and have regular visitation with the child.  This scenario does occur in some instances because, for instance, the mother and rapist were friends and/or acquaintances—even previously dating.  In such instances, the court can question whether the raped mother is acting in the child’s bests interests if she allows the rapist father to see the child.

Ms. Garrett is a qualified and experienced California family-law attorney. Click here  if you wish to discuss your California custody matter with Ms. Garrett.

Child Custody–California Courts Consideration in Making Custody Awards–All Blogs

Part 1: “Best Interest of the Child” Standard— Child’s Health, Safety & Welfare

Part 2: “Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence 

Part 3: “Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol”

Part 4:”Parents Gender”

Part 5: “A Child’s Preference

Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist”

Part 7: “Existing Restraining Orders” 

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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