Jackman & Kasody PLLC

Previously, we began looking at recent changes in Michigan law impacting custody cases in which domestic violence is an issue that needs to be addressed. One of the changes, we noted, was that courts will no longer be able to take into consideration for purposes of determining custody and visitation the actions a party takes to protect his or her children from domestic violence.

Another important change to the law is that a parent is no longer required to present evidence of criminal conviction for rape to have a family court remove parental rights. Under the previous version of the law, courts were prohibited from awarding custody when there was a conviction, but now rape survivors are only required to present clear and convincing evidence. 

The measure allows a parent to present clear and convincing evidence of nonconsensual sexual penetration as a sufficient grounds or terminating custody rights. The only exception to the rule would be cases where the biological parents cohabit and establish a mutual custody environment for the child after the date of conviction or the court’s finding that sexual assault occurred.

In cases where a child is conceived by rape, the court may still grant visitation time to the offending parent, taking a variety of factors into account to determine the best interests of the child. Obviously, such situations require serious advocacy for the parent who has been victimized. By the same token, though, those who are wrongly accused of rape need zealous advocacy not only to defend themselves against criminal charges, but also to ensure their parental rights aren’t unfairly removed. 

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