Bill S5001A-2013

Relates to termination of parental rights in cases of a child conceived through rape

Provides a process for the termination of parental rights in cases of a child conceived through rape by clear and convincing evidence.

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  • Jan 21, 2014: PRINT NUMBER 5001A
  • Jan 21, 2014: AMEND AND RECOMMIT TO CHILDREN AND FAMILIES
  • Jan 8, 2014: REFERRED TO CHILDREN AND FAMILIES
  • May 3, 2013: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S5001A

TITLE OF BILL: An act to amend the domestic relations law, the penal law and the family court act, in relation to termination of parental rights in cases of a child conceived through rape

PURPOSE: To expand the protections afforded to women who conceive a child as a result of rape.

SUMMARY OF LEGISLATION: Section 1. Subdivision 1 of section 111-a of the domestic relations law, as amended by chapter 371 of the laws of 2013, is amended so that if, after a judicial hearing, it is found by "clear and convincing evidence," that a woman has been raped in the first, second or third degree, and a child was conceived as result of that rape, the woman does not have to notify her assailant of her intention to give the child up for adoption.

Section 2. Section 130.92 of the penal law is amended by adding a new subdivision 4 that terminates the parental rights and responsibilities of a parent who is "convicted" of the crime of rape in the first, second, at third degree. This provision mandates that the court terminate parental rights if a conviction occurs.

Section 3. Subdivision 5 of section 240 of the domestic relations law, as added by section 103 of chapter 398 of the laws of 1997, is renumbered subdivision 6 and a new subdivision 7 is added so that no court shall award custody or visitation rights to any parent woo has been charged with violating section 130.25 (rare in the third degree), 130.30 (rape in the second degree), or 130.35 (rape in the first degree) of the penal law, until the conclusion of all proceedings associated with such charges. In addition, neither custody nor visitation shall be awarded to any parent who is convicted of such charges.

Section 4. Article 6 of the family court act is amended adding a new part 6 which establishes a hearing process by which a victim can prove by "clear and convincing evidence" that the respondent committed the crime of rape in the first, second, or third degree and a child was conceived as a result of such rape. At the conclusion of the hearing, the court may terminate all of the parental rights and responsibilities of the respondent if it is found that he indeed committed rape and the child was conceived as a result of such rape.

JUSTIFICATION: In march of 2010, Shauna Prewitt, a rape survivor and J.D. candidate at Georgetown Law School published a scholarly piece examining the legal protections afforded to women who mother through rape. The piece exposed a legal system that affords women few protections. In fact, most states give a man who has fathered through rape the same legal rights to custody and visitation as any other father. It is impossible to imagine the anguish a victim endures when they are forced to not only interact with their assailant, but actually share parental responsibilities. Sadly, very few states, including New York have passed legislation dealing with this very important issue. When looking at these cases, we must take into account all the legal processes that are involved with parental rights.

The requirement of a conviction of rape is a central question when analyzing this issue. In 2010, sixteen states had statutes that protect a raped woman who chooses to raise her child. Ten of those sixteen states required a criminal conviction to begin the process of terminating or restricting parental rights. This is problematic because few rapes are even brought to trial and even when they are, many defendants are allowed to plead guilty to a lesser offense. Therefore, this legislation looks to establish a hearing process that makes "clear and convincing evidence" sufficient grounds for the restriction or stripping of parental rights.

This legislation would also protect women who choose to put a child conceived through rape up for adoption. Current New York State Law requires that unless there is a conviction of rape in the first degree, a woman must notify the father (rapist) of a decision to put the child up for adoption. This legislation expands the conviction to include rape in the second and third degree and adds "clear and convincing evidence" at a hearing to the statute. Therefore, this proposed legislation seeks to protect victims of rape and begin their journey to recovery should they choose to put the child up for adoption without fearing retaliation from the perpetrator.

This legislation also mandates that a court terminate the parental rights of any parent woo is convicted of rape in the first, second, or third degree. If someone is convicted of rape, they should have no contact with the child. There have been cases where courts have determined that terminating parental rights is not in the best interest of the child because of the period of time between a perpetrator's arrest and conviction where they have established a presence with the child. Therefore, leaving the termination of parental rights to the discretion of the court following a conviction is unnecessary and unreliable.

To allow a rapist to establish a parental presence in the life of a child is unacceptable and can be traumatic to both the mother and child. Perpetrators can also use the interim between arrest and conviction to intimate the mother into dropping the charges, often using the custody of the child as leverage. Therefore, this legislation proposes that no custody or visitation rights be granted to anyone charged with rape until the conclusion of the proceedings.

Finally, by establishing a process by which a woman can petition a court to conduct a hearing for conception by rape, protects a woman from a drawn cut legal proceeding where variables are out of her control. This hearing process also protects the accused by setting "clear and convincing" as the standard for the stripping of parental rights and leaving the decision to the discretion of the court.

This legislation will continue New York's position as a leader in women's rights. Current New Yore law does not protect women who conceive a child through rape. Women who choose to keep a child conceived through rape should not be forced to relive their rape day after day by interacting with the rapist. We can and must do better.

LEGISLATIVE T731-STORY: New bill

FISCAL IMPLICATIONS: To be determined

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 5001--A 2013-2014 Regular Sessions IN SENATE May 3, 2013 ___________
Introduced by Sen. STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- recommitted to the Committee on Children and Families in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the domestic relations law, the penal law and the family court act, in relation to termination of parental rights in cases of a child conceived through rape THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 111-a of the domestic relations law, as amended by chapter 371 of the laws of 2013, is amended to read as follows: 1. Notwithstanding any inconsistent provisions of this or any other law, and in addition to the notice requirements of any law pertaining to persons other than those specified in subdivision two of this section, notice as provided herein shall be given to the persons specified in subdivision two of this section of any adoption proceeding initiated pursuant to this article or of any proceeding initiated pursuant to section one hundred fifteen-b of this article relating to the revocation of an adoption consent, when such proceeding involves a child born out- of-wedlock provided, however, that such notice shall not be required to be given to any person who previously has been given notice of any proceeding involving the child, pursuant to section three hundred eight- y-four-c of the social services law, and provided further that notice in an adoption proceeding, pursuant to this section shall not be required to be given to any person who has previously received notice of any proceeding pursuant to section one hundred fifteen-b of this article. In addition to such other requirements as may be applicable to the petition in any proceeding in which notice must be given pursuant to this section, the petition shall set forth the names and last known addresses
of all persons required to be given notice of the proceeding, pursuant to this section, and there shall be shown by the petition or by affida- vit or other proof satisfactory to the court that there are no persons other than those set forth in the petition who are entitled to notice. For the purpose of determining persons entitled to notice of adoption proceedings initiated pursuant to this article, persons specified in subdivision two of this section shall not include any person who has been convicted of one or more of the following sexual offenses in this state or convicted of one or more offenses in another jurisdiction which, if committed in this state, would constitute one or more of the following offenses, WHERE IT IS ESTABLISHED AFTER A HEARING, BY CLEAR AND CONVINCING EVIDENCE, THAT SUCH PERSON COMMITTED ANY SUCH OFFENSE OR when the child who is the subject of the proceeding was conceived as a result: (A) rape in first [or], second OR THIRD degree; (B) course of sexual conduct against a child in the first degree; (C) predatory sexual assault; or (D) predatory sexual assault against a child. S 2. Section 130.92 of the penal law is amended by adding a new subdi- vision 4 to read as follows: 4. THE PARENTAL RIGHTS AND RESPONSIBILITIES WITH RESPECT TO A CHILD OF A PARENT CONVICTED OF THE CRIME OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35 OF THIS ARTICLE, RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30 OF THIS ARTICLE, OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THIS ARTICLE, THAT RESULTED IN THE CONCEPTION OF SUCH CHILD SHALL BE TERMINATED IN ACCORDANCE WITH ARTICLE SIX OF THE FAMILY COURT ACT. S 3. Subdivision 5 of section 240 of the domestic relations law, as added by section 103 of chapter 398 of the laws of 1997, is renumbered subdivision 6 and a new subdivision 7 is added to read as follows: 7. NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW TO THE CONTRARY, NO COURT SHALL AWARD CUSTODY TO A PARENT WHO HAS BEEN CHARGED WITH VIOLAT- ING SECTION 130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE IN THE SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW, WHERE THE CHILD THAT SUCH PARENT SEEKS CUSTODY OR VISITATION OF WAS CONCEIVED AS A RESULT OF SUCH RAPE, UNTIL THE CONCLUSION OF ALL PROCEEDINGS ASSOCIATED WITH SUCH CHARGES. NEITHER CUSTODY NOR VISITATION SHALL BE AWARDED TO A PARENT WHO HAS BEEN CONVICTED OF VIOLATING SECTION 130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE IN THE SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW. S 4. Article 6 of the family court act is amended by adding a new part 6 to read as follows: PART 6 TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY RAPE SECTION 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY RAPE. 682. HEARING. S 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY RAPE. 1. A PROCEEDING FOR TERMINATION OF PARENTAL RIGHTS ON THE GROUNDS OF A FINDING OF CONCEPTION BY RAPE IS ORIGINATED BY A PETITION ALLEGING THAT THE RESPONDENT COMMITTED THE CRIME OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30, OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THAT THE CHILD WAS CONCEIVED AS A RESULT OF SUCH RAPE. EXCEPT AS OTHERWISE PROVIDED IN THIS PART, THE PROVISIONS OF PART ONE OF THIS ARTICLE SHALL APPLY TO ALL PROCEEDINGS.
2. AT THE CONCLUSION OF THE HEARING UNDER SECTION SIX HUNDRED EIGHTY- TWO OF THIS PART THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS AND RESPONSIBILITIES OF THE RESPONDENT IF THE RESPONDENT IS FOUND BY CLEAR AND CONVINCING EVIDENCE TO HAVE COMMITTED RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30 OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THE CHILD WAS CONCEIVED AS A RESULT OF SUCH ACT. AN ORDER OF DISPOSITION SHALL BE MADE, PURSUANT TO THIS SECTION, SOLELY ON THE BASIS OF THE BEST INTERESTS OF THE CHILD, AND THERE SHALL BE NO PRESUMPTION THAT SUCH INTERESTS WILL BE PROMOTED BY ANY PARTICULAR DISPOSITION. S 682. HEARING. THE COURT SHALL HOLD A HEARING UNDER THIS PART TO DETERMINE WHETHER THE ALLEGATIONS IN THE PETITION THAT THE RESPONDENT COMMITTED RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30 OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THAT THE CHILD WAS CONCEIVED AS A RESULT OF SUCH ACT ARE SUPPORTED BY CLEAR AND CONVINCING PROOF. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE MAY BE ADMITTED IN A HEARING PURSUANT TO THIS SECTION. A CONVICTION OF THE RESPONDENT ON THE CHARGES ALLEGED SHALL NOT BE REQUIRED FOR A FINDING UNDER THIS SECTION. S 5. This act shall take effect immediately.

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