Sunday, September 01, 2013

Teen mom refuses to see dad in court

This story sounds worse than it is:
A 19-year-old Massachusetts woman is suing the state for requiring her to attend family court with the man who raped and impregnated her.

In court filings, the victim, whom WBUR is not naming, says she and her mother repeatedly told state officials that they “wanted no contact with [Jamie] Melendez for any purpose and that they did not want the child born of the crime to have a relationship with Melendez.”

Melendez pleaded guilty in September 2011 to a rape charge and was sentenced to 16 years probation, including regular visits to family court….

H.T. says Melendez was ordered to pay $110 a week in child support and then, in 2012, went to court seeking visitation. He offered to withdraw his request if the order for child support was voided….
The rape was statutory rape, not forcible rape. If she did not want to see him in family court, then she should not have sued him for child support in the first place.

I have no idea whether Melendez was appropriately punished for his crime. But I do think that it is crazy to ask a man to pay child support for a child that he never gets to visit.

Congress has proposed a bill to force the state to cut off child custody for rapists:
Congress finds the following:

(1) Men who father children through rape should be prohibited from visiting or having custody of those children.

(2) According to several studies, it is estimated that there are between 25,000 and 32,000 rape-related pregnancies annually in the United States.

(3) A substantial number of women choose to raise their child conceived through rape and, as a result, may face custody battles with their rapists.

(4) According to one study, 32.3 percent of women who were raped and became pregnant as a result of the rape kept their child.
I am skeptical about these numbers. In a real forcible rape, the woman promptly reports it to police and gets sent for medical evaluation and treatment, where she gets the equivalent of a morning-after pill and never gets pregnant.
(8) The Supreme Court established that the clear and convincing evidence standard satisfies due process for allegations to terminate or restrict parental rights in Santosky v. Kramer (455 U.S. 745 (1982)).

(9) Currently only 6 States have statutes allowing rape survivors to petition for the termination of parental rights of the rapist based on clear and convincing evidence that the child was conceived through rape.
6 States? All 50 states have procedures for terminating parental rights. I don't know how they get down to 6. A criminal rape conviction requires proof beyond reasonable doubt, so maybe this is just a statement about the standard of proof.
The Attorney General shall make grants to States that have in place a law that allows the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child, which the court shall grant upon clear and convincing evidence of rape.
So a man could be acquitted of rape at a criminal trial, and still be considered a rapist in the family court?

The worst part of this law is what it does not say. There is no distinction between forcible and statutory rape, and between marital and stranger rape. There is no limitation on how many years can pass before the mom makes the rape accusation.

My guess is that this will become just another weapon in divorce cases. A couple could get divorced, and end up in family court over the custody of a 5yo child. Then the mom could suddenly say that the child is the result of a rape. It becomes just her word against his word.
(b) Rule of Construction- Nothing in this section shall be construed to require a State, in order to receive a grant under this Act, to have in place a law that terminates any obligation of a person who fathered a child through rape to support the child.
SO they want to terminate the dad's cusoody and visitation rights, but still make him pay child support!

This law is unnecessary and destructive. If the man is really a rapist and there is proof, he will be sent to prison and will be in no position to win child custody. It is just another anti-dad law.

In case you don't think women make false rape accusations, read this UK BBC story:
A teenager has been given a caution for wasting police time by falsely claiming she was raped in an attack in Surrey.

The 18-year-old, from London, made the allegation in Ewell on 30 June.

She was found in the Cox Lane area and police said they spent much of the day interviewing people. Specialist officers also offered her support.

But later that evening, the woman told officers the allegation was false. Det Insp Antony Archibald said such reports were "deeply frustrating". ...

He added: "We have carefully considered what action could be taken against the woman and it was decided that a caution would be the most suitable form of punishment."
Women who false claim rape in order win child custody are unlikely to face any adverse consequences.

Update: A reader points to the statues. See Family Code 4002
4002. (a) The county may proceed on behalf of a child to enforce the child's right of support against a parent.
(b) If the county furnishes support to a child, the county has the same right as the child to secure reimbursement and obtain continuing support. The right of the county to reimbursement is subject to any limitation otherwise imposed by the law of this state.
(c) The court may order the parent to pay the county reasonable attorney's fees and court costs in a proceeding brought by the county pursuant to this section.
And here is Welfare Code :
11477.04. (a) An applicant or a recipient shall be considered to be cooperating in good faith with the county welfare department or the local child support agency for purposes of Section 11477 and shall be eligible for aid, if otherwise eligible, if he or she cooperates or has good cause for noncooperation. The county welfare department shall make the good cause determination. ...


Anonymous said...

The father might have been sued for support not by the mother but by the local child support agency because the mother is on public assistance.

You may have hit on a case in which "best interest of the child" really does make sense rather than some complicated rules about how old they are and whether it was consensual and when she reported it.

George said...

To me, there is not much difference between (1) the mom suing the dad for child support, and (2) the mom applying for welfare and authorizing the welfare agency to sue the dad for child support. In both cases, the mom is asking the govt to extort the dad for money.

Anonymous said...

There is no sense of the mother "authorizing" the child support agency. This is as old as the hills. If she gets public assistance, the government will sue the father for support. By the way, the welfare agency and child support agency are not the same.

Are you sayIng if there's a one-night stand and a child results, it's entirely her problem?

George said...

The govt only sues the dad for child support if the mom authorizes the agency to act in her behalf. Otherwise the mom could separately sue for child support.

If a woman has a 1-night stand and later has a child, she can sue for child support. She can either either sue herself, or authorize a govt agency to sue in her behalf. The agency will never sue unless she authorizes it in writing.

Anonymous said...

Family Code section 4002 says the county has the same standing as the mother to sue the father if public assistance is being provided. It doesn't say anything about the mother needing to give permission.

Maybe you can find some law requiring her to give such permission as a condition of receiving public assistance. It seems unlikely that if there's a mother with a child and no income and no money that they're not going to give her any assistance until she signs an authorization to sue the father. She might be afraid to do that.

Your blog would be more useful if you would provide the basis for your assertions.

Anonymous said...

Check out Welfare and Institutions Code section 11477.04(b)(3). A mother doesn't need to assign her right to sue for child support in order to receive public assistance in the case of incest or rape.

George said...

Thanks for this info. I am adding the links to the post. So if a single mom applies for welfare, the agency will ask her to name the dad, and the effect will be that the agency will be authorized to sue for child support.