Should a Rapist Have Parental Rights of a Child Conceived Due to the Rape?

Written by: Lenorae Atter, Attorney at Law

Do rapists have rights to a child conceived during the rape? That is a question being asked in a Massachusetts court. The question arose after the now, 24 –year-old male, who was 17 at the time, raped a 14-year-old girl that subsequently had a child. Jamie Melendez was sentenced to 16 years of probation after admitting his guilt to the rape.

The question on everyone’s mind is, “How does he stand a chance?” Well, the judge that oversaw the criminal case basically sent a portion of the case to the family law court system to have child support ordered. By establishing a child support obligation, the judge basically gave this rapist parental rights to the child that was conceived out of force. When biological parents are unmarried, a man’s rights to the child are typically established through a paternity action. When the State takes the reigns on establishing child support, it is generally done solely for the purposes of child support, which was the case here. Now, however, the family law case opened the door for this guy to seek visitation rights, since he is claiming that if he has to pay support who should be able to have a relationship with the child.

The issue, at least in Florida, would most likely be that the guy would be on a sex offender list and be precluded from having contact with the children. Since his criminal actions were against a minor child, the presumption is that he would be a risk to other children, including his own.

In reaction to this development, the Mother’s attorney has asked that the court reverse the family law order and require that the convicted rapist be ordered to pay restitution which would equal the same as child support. The restitution would not establish his parental rights and would basically undo his ability to seek visitation. The question will most likely come up at some point though, does that forever bar this person from filing a claim for parental rights in the future?

In Florida, there would be questions as to whether an injunction or restraining order should be issued on behalf of the mother and child. While this guy has not physically harmed the child, his violence is ultimately what lead to her birth initially. Therefore, there could be an argument that he does pose an immediate threat of violence to the child as well. In the family law case, in Florida, the standard to be applied to establish visitation is, “What is in the best interest of the child?” It would be a very difficult case to prove that the biological father of this child is safe for the child to be around. It would be very challenging because the mere presence of the biological father in the child’s life will directly impact the child’s relationship with her mother. Also the presumed harm from the fact that Melendez’s actions were, in fact, against a child…the mother.

This is a case to watch for because the result will be felt throughout the country. Sadly, it will be felt as a way for convicted rapists to continuously and forever make their victims a victim. Hopefully this judge will make the decision that Melendez has no parental rights and the child and mother can be free from any future pain he would like to cause them.