In the wake of Rep. Todd Akin’s comments about “legitimate rape,” a debate regarding child custody for children born from rape has begun.
Last week, Shauna Prewitt published an article in response to Rep. Akin’s comments in an attempt to enlighten people on the topic of rape and child custody. Shauna is a victim of a rape that led to the birth of her daughter. Shortly after her daughter’s birth, Shauna learned that the man who raped her had the right to apply for custody and visitation rights of the child.
This is the case in 31 states.
In Illinois, child custody disputes are governed by Sec. 602 (a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under this section the Court will apply the “Best Interest of the Child” Standard. The application of this standard by the Court is more of an art than a science. The Court considers a variety of factors in any custody evaluation to determine what’s in the best interest of the child, such as:
- Actual violence
- The threat or likelihood of one party to be violent towards the child or any other person
- Whether there are occurrences of ongoing or repeated abuse towards the child or any other person
- Whether one of the parents is a sex offender
“Judging by these guidelines I would find it hard to believe that any Judge would award a rapist any visitation rights, let alone custody to a child that was conceived as a result of sexual assault,” says Illinois Family Law Attorney, Sean Sullivan. “Rep. Akin might argue that in cases of ‘legitimate rape’ the father would have a ‘legitimate right’ to visitation or custody. I would strongly disagree with any Judge who would make any such assertion that a rapist has rights towards his child. If they are entitled to visitation then they should be on the hook for child support too. Maybe this argument could be used to dissuade any such individual from pursuing custody.”