What's happening
This bill allows for the termination of parental rights if a child was conceived through rape, including first, second, or third degree.
Why it matters
Expands grounds for terminating parental rights. The bill allows courts to terminate the parental rights of individuals who conceived a child through rape in the first, second, or third degree—not just after a criminal conviction, but also based on a court's finding by clear and convincing evidence.
Standard of proof clarified. The legislation specifies that termination can occur if a court finds, after a hearing, that it is clearly and convincingly proven the child was conceived as a result of rape, even without a criminal conviction. This lowers the threshold from “beyond a reasonable doubt” to “clear and convincing evidence” in family court proceedings.
Limits custody and visitation rights. The bill creates a presumption against awarding custody or visitation to a parent who conceived a child through rape, and explicitly prohibits such awards if there is a conviction, or while charges are pending, strengthening protections for the child and the non-offending parent.
Aims to prioritize child’s best interests. The law requires that any disposition regarding parental rights be based solely on the best interests of the child, with no assumption that maintaining a relationship with the biological parent is preferable in these circumstances.
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Who cares
Headline styles
End Parental Rights for Rapists
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to codes
- Referred to codes
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
End Rapist Parental Rights
In Assembly Committee · Judiciary · Sponsor Edward Braunstein
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
2948
2019-2020 Regular Sessions
IN SENATE
January 31, 2019
Introduced by Sen. STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the domestic relations 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 Assembly, do enact as follows:
Section 1. Section 130.92 of the penal law is amended by adding a new subdivision 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.
§ 2. 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 outof-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 eighty-four-c of the social services law, and provided further that notice in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02921-01-9
S. 2948 2
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 affidavit 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.
§ 3. Paragraph (b) of subdivision 1-c of section 240 of the domestic relations law, as amended by chapter 371 of the laws of 2013, is amended to read as follows:
(b) Notwithstanding any other provision of this chapter to the contrary, there shall be a rebuttable presumption that it is not in the best interests of the child, whether born in or out-of-wedlock, to be placed in the custody of or to visit with a 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, when a child who is the subject of the proceeding was conceived as a result: (A) rape in the first or second 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.
§ 4. 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 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, 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.
§ 5. 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
S. 2948 3
Section 681. Termination of parental rights upon a finding of conception
by rape.
682. Hearing.
§ 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 eightytwo 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.
§ 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.
§ 6. This act shall take effect immediately.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, the domestic relations 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. Section 130.92 of the penal law is amended by adding a new subdivision 4.
Read the full memo (1,063 words)
This terminates the parental rights and responsibilities of a parent who is "convicted" of the crime of rape in the first, second, or third degree. This provision mandates that the court terminate parental rights if a conviction occurs.
Section 2. Subdivision 1 of section 111-a of the domestic relations law, as amended by chapter 371 of the laws of 2013, is amended. 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 3. Paragraph (b) of subdivision 1-c of section 240 of the domes- tic relations law, as amended by chapter 371 of the laws of 2013, is amended.
This includes the provision that there will be a rebuttable presumption that it is not in the best interests of the child whether born in or out-of-wedlock to be placed in the custody of or to visit with the person who has been convicted of rape which resulted in the conception of that child.
Section 4. Subdivision 5 of section 240 of the domestic relations law, as added by section 103 of chapter 398 of the laws of 1997, is renum- bered subdivision 6 and a new subdivision 7 is added. No court shall award custody or visitation rights to any parent who has been charged with 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, until the conclusion of all proceedings associated with such charg- es. In addition, neither custody nor visitation shall be awarded to any parent who is convicted of such charges.
Section 5. Article 6 of the family court act is amended adding a new part 6.
This 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
New York State, under certain circumstances, gives a rapist who fathered a child the legal right to custody and/or visitation. It is impossible to imagine the anguish a victim endures when she is forced to not only interact with the assailant, but actually share parental responsibil- ities. Sadly, New York is one of a limited number of states where the rapist has this right.
In March of 2010, Shauna Prewitt, a rape survivor and law student at Georgetown Law School, published a scholarly article examining the legal protections afforded women who become mothers as a result of rape. The article exposed a legal system that permitted the rapist custody and visitation rights regarding the child born as a result of rape.
Currently, a total of 33 states have enacted statutes that either termi- nate parental rights or eliminate the requirement that the father be notified of an adoption proceeding when a child has been conceived as a result of rape. Most states use the "clear and convincing evidence" evidentiary standard for terminating a rapist's custody claims.
Unfortunately, fewer than 5% of rape cases are ever 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 denial of parental or custodial 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 the decision to put the child for adoption. This legislation expands the statute to include conviction to include rape in the second and third degree and applies the "clear and convincing evidence" at a hearing standard.
Accordingly, this proposed legislation seeks to protect victims of rape and begin their journey toward recovery should they choose to put the child up for adoption without fearing retaliation from the perpetrator.
If someone is convicted of rape, they should have no contact with the child. There have been cases where courts have determined that terminat- ing parental rights is not in the best interest of the child because the rapist has established a relationship with the child as a result of the lengthy interval between arrest and conviction.
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 intimidate 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.
Establishing a process by which a woman can petition the court to conduct a hearing, protects the woman from a long, drawn out legal proceeding. This hearing process also protects the accused by setting "clear and convincing evidence" as the standard for denying parental rights and leaving the decision to the discretion of the court.
Lastly, in 1982, the Supreme Court established, in Santosky v Kramer (455 U.S. 745) that "clear and convincing evidence" does not impede due process in restricting or terminating parental rights.
Legislative history
2018: S 3515 - Referred to Codes
Fiscal implications
None to the State.
Effective date
This act shall take effect immediately.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.