Houston, Texas Child Custody & Sexual Assault Attorney
Child Custody & Sexual Assault Defense — Houston, Galveston, League City, Texas
Child custody disputes between parents are always fraught with emotional difficulties. But when allegations of sexual assault are involved, the consequences can be devastating for the parents and child alike. Such matters needed to be handled with the greatest of sensitivity and understanding.
No matter what side of the dispute you are on–the person making the sexual assault allegation or the one who is accused–you need to work with an experienced Texas family law attorney who understands the complexities of the law in this area. Even when there are no criminal charges of sexual assault pending against a parent, the mere accusation can significantly impact a judge’s custody determination. The Law Offices of Tad Nelson & Associates can promise you professional representation in handling these matters. We will work to ensure the best possible outcome under the circumstances.
Terminating Parental Rights When a Child Is Conceived Through Rape
Each year thousands of women in the United States become pregnant as the result of a sexual assault. Like many states, Texas has laws on the books that authorize a judge to terminate the parental rights of the attacker. It is important to emphasize that such proceedings are independent of any criminal investigation or trial regarding the sexual assault itself.
Section 161.007 of the Texas Penal Code states a family court judge “shall” order termination of parental rights when three conditions are met:
- The accused parent is found to have engaged in conduct that is a specified criminal offense;
- The child was conceived “as a direct result” of that conduct; and
- It would be “in the best interest of the child” to terminate the accused person’s parental rights.
Specified offenses under Section 161.007 include any or all of the following:
- sexual assault (rape)
- aggravated sexual assault
- continuous sexual abuse of a young child or children; and
- prohibited sexual conduct, i.e. sexual intercourse with an ancestor, descendant, stepchild, sibling, or other relation.
Unlike a criminal trial, where the accused must be found guilty of every element of the offense “beyond a reasonable doubt,” in termination proceedings under Section 161.007, a judge need only find by “clear and convincing evidence” that sexual assault or another specified offense took place.
The Texas Supreme Court has defined clear and convincing evidence as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” In other words, it is less than “beyond a reasonable doubt,” but greater than “preponderance of the evidence,” which is the standard used in most civil proceedings.
Of course, a criminal conviction for sexual assault or another specified offense is usually enough to meet the “clear and convincing” standard. But even without a conviction, a judge may decide after listening to witness testimony and considering other evidence that the accused parent likely committed sexual assault and therefore it would be in the child’s “best interest” to terminate parental rights.
The “best interest” determination itself is based on a number of factors. A judge may consider, among other things, the child’s emotional and physical needs now and in the future, the danger posed to the child, the overall stability of the home, and any “acts or omissions” of the accused parent that could indicate a continuing relationship with the child is improper. A judge should also consider the child’s desires if he or she is capable of expressing them. However, the child’s wishes are not paramount.
A court may also consider other personal character evidence in deciding a Section 161.007 petition, including the accused parent’s history of drug use, domestic violence, or other violent felonies such as armed robbery.
Sexual Assault Accusations & Custody Disputes
Even if a child was not conceived as a result of rape, a family court can also look at accusations and evidence of sexual assault and related crimes in making a custody determination as part of a divorce proceeding. By default, Texas law presumes both of a child’s parents should be named “joint conservators,” or share custody. But a judge can ignore this presumption if there is evidence that a parent has a history of committing acts of domestic violence or sexual assault, whether against the child or the other parent.
While sexual assault allegations must always be taken seriously, there are of course cases where false charges are levied by a parent seeking to gain the upper hand in a bitterly contested custody case. Whatever side you find yourself on, attorney Tad Nelson and his team can offer you the best legal representation available. Contact our offices in Houston, League City, or Galveston today at (281) 280-0100 to schedule a consultation today.