There has been recent news coverage regarding the fact that in some states sexual assault survivors, who have children as a result of their assault, are forced to share custody of their child with the person who sexually assaulted them. Fortunately, Illinois has various laws in place to prevent this from happening.
Illinois Statute Prohibits Men Who Father Children through Sexual Assault from Obtain Custody or Visitation
An Illinois state statute prohibits men who have fathered children through sexual abuse or sexual assault from obtaining visitation or custody of those children. Now, of course, not all cases of sexual assault or sexual abuse are prosecuted, and even when they are prosecuted those prosecutions are not always successful. Therefore, the legislature provided two different ways that courts can determine that a natural father became a natural father through one of these horrendous acts.
Once it has been established that a man is a child's natural father, he can be proven to have fathered the child through sexual assault or sexual abuse in one of the following ways:
- His pleading guilty to or being found guilty of criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, aggravated criminal sexual abuse, sexual relations within families, or a similar crime from another jurisdiction for his conduct in fathering the child; or
- A court can hold a fact-finding hearing at which it would have to be established by clear and convincing evidence (which is lower than the amount of evidence needed for a criminal prosecution) that he has committed an act of non-consensual sexual penetration in fathering the child.
Once the court has decided that a father became the father through sexual assault or abuse, a long list of prohibitions apply to him. He cannot receive custody of a child or visitation without the consent of the child's mother or guardian. If he is the guardian, he cannot consent to custody or visitation on his own behalf. If the mother is a minor and the father is the guardian of the mother, this also does not give him authority to consent to custody or visitation.
Perpetrators of Sexual Assault and Abuse Still on the Hook for Child Support
While these men cannot obtain visitation rights or custody, they can still be held responsible for child support. The children who are conceived through these criminal acts have the same right to be supported as any other child. Meanwhile, should the unfortunate circumstances arise where a child predeceases the man who fathered him or her through assault or abuse, the man is not allowed to inherit anything from the child without the permission of the child's mother or guardian.
Call Sullivan Taylor & Gumina, P.C.
Illinois gives survivors of sexual assault strong rights in child custody disputes. Unfortunately, survivors may have to fight to protect those rights. If you find yourself in this situation, you will need the help of an experienced Illinois family law attorney. Call Sullivan Taylor & Gumina, P.C. for an appointment at 630-665-7676. We are here to help you.