Legislature debates lowering child custody standard for rape case

Law Office of Dawn R. Underhill

For any Illinois resident who has endured a rape or sexual assault, it can be a traumatic incident that can change their life forever. This can be especially true if the rape was perpetrated against a woman by the father of her child. In these situations, not only may the woman have to deal personally with the aftermath of the rape, but she may also have to battle the father for child custody.

Typically, child custody is determined by looking at the best interests of the child. This standard is intentionally broad, and can include examining factors like the wishes of the child, the ability of parents to provide a stable environment and the mental and physical health of the parents, among other factors.

The court will also look at whether a parent has engaged in excessive discipline, or other forms of abuse, including sexual abuse. Under current Illinois law, however, if a woman is raped by the father of the child, the father’s custody and visitation rights may only be restricted if there is a criminal rape conviction against the father of the child.

One woman is attempting to lower the standard of proof in such situations. The woman, an attorney, is advocating for a change in the law that would make it enough to restrict an attacker’s rights if the woman provides a rape by clear and convincing evidence.

Clear and convincing evidence is a legal standard employed by courts under certain circumstances, and generally means the woman must show it is highly probable the event occurred. It is still a very high standard of proof, higher than the preponderance of the evidence standard used in civil cases, but lower than the beyond a reasonable doubt standard used for criminal convictions.

The proposal has moved forward to the next stage of the legislative process, although it remains to be seen whether the law will be changed. In either event, individuals who have suffered rape or abuse by another parent should work with a qualified family law attorney to determine the best way forward in a child custody proceeding.

Source: WUIS, “Illinois attorney looking to close child loophole,” Mar. 25, 2013

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Legislature debates lowering child custody standard for rape case