The law was passed in late 2015, and enacted mid-year 2016. Its purpose? To close a frightening legal loophole in the state's custody code that could technically allow a rapist to pursue visitation and/or custody with the product of the sexual assault -- i.e., the biological child. The measure brought Michigan in line with 42 other states that had previously enacted similar measures. Approximately seven states still do not have such laws on the books, however many of these states are working diligently to enact similar legislation.
So how does the law work? Prior to the passage of Senate Bill 629, a rapist's parental rights could not be legally terminated until a criminal conviction occurs. Oftentimes, it can take months, or a year or longer, for the criminal case to conclude -- not including any appeals. As well, the burden of proof in criminal court is higher than that in a civil termination of parental rights proceeding, which made the case even more dicey for children and victims awaiting a final conviction.
Now, the child of a rape may petition the court to terminate the parental rights of the biological parent -- a proceeding with a much lower burden of proof. In essence, the child must set forth allegations that he or she was conceived as a result of a non-consensual sexual act, and that the biological parent responsible for committing the act should not have parental rights. The petition would be submitted for the child by an attorney, known as a guardian ad litem, who would also set forth allegations as to why severing the parent-child relationship would be in the child's best interests.
Michigan's law is somewhat progressive as compared to about 20 other states, which require a criminal conviction prior to the petition for termination of parental rights. By contrast, Michigan lawmakers recognized that sexual assaults often go unreported. In fact, the Bureau of Justice Statistics reports that approximately 36 percent of all sexual assaults are reported to law enforcement. Fortunately, Michigan's law does not require a conviction as a prerequisite to pursuing the termination of parental rights.
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To learn more about Michigan's child custody laws, please contact Byers & Goulding, PLLC today: 248-340-0900.