senate Bill S5001

Amended

Relates to termination of parental rights in cases of a child conceived through rape

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 03 / May / 2013
    • REFERRED TO CHILDREN AND FAMILIES
  • 08 / Jan / 2014
    • REFERRED TO CHILDREN AND FAMILIES
  • 21 / Jan / 2014
    • AMEND AND RECOMMIT TO CHILDREN AND FAMILIES
  • 21 / Jan / 2014
    • PRINT NUMBER 5001A

Summary

Provides a process for the termination of parental rights in cases of a child conceived through rape by clear and convincing evidence.

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Bill Details

Versions:
S5001
S5001A
Legislative Cycle:
2013-2014
Current Committee:
Senate Children And Families
Law Section:
Domestic Relations Law
Laws Affected:
Amd §§111-a & 240, Dom Rel L; amd §130.92, Pen L; add Art 6 Part 6 §§681 & 682; Fam Ct Act

Sponsor Memo

BILL NUMBER:S5001

TITLE OF BILL: An act to amend the domestic relations law, the penal
law and the family court act, in relation to termination of parental
rights in cases of a child conceived through rape

PURPOSE: To expand the protections afforded to women who conceive a
child as a result of rape.

SUMMARY OF LEGISLATION: Section 1. Subdivision 1 of section 111-a of
the domestic relations law, as amended by chapter 353 of the laws of
1993, is amended so that if, after a judicial hearing, it is found by
"clear and convincing evidence," that a woman has been raped in the
first, second or third degree, and a child was conceived as result of
that rape, the woman does not have to notify her assailant of her
intention to give the child up for adoption.

Section 2. Section 130,92 of the penal law is amended by adding a new
subdivision 4 that terminates the parental rights and responsibilities
of a parent who is "convicted" of the crime of rape in the first,
second, or third degree. This provision mandates that the court
terminate parental rights if a conviction occurs.

Section 3. Subdivision 5 of section 240 of the domestic relations law,
as added by section 103 of chapter 398 of the laws of 1997, is
renumbered subdivision 6 and a new subdivision 7 is added so that no
court shall award custody or visitation rights to any parent who has
been charged with violating section 130.25 (rape in the third degree),
130.30 (rape in the second degree), or 130.35 (rape in the first
degree) of the penal law, until the conclusion of all proceedings
associated with such charges. In addition, neither custody nor
visitation shall be awarded to any parent who is convicted of such
charges.

Section 4, Article 6 of the family court act is amended adding a new
part 6 which establishes a hearing process by which a victim can prove
by "clear and convincing evidence" that the respondent committed the
crime of rape in the first, second, or third degree and a child was
conceived as a result of such rape. At the conclusion of the hearing,
the court may terminate all of the parental rights and
responsibilities of the respondent if it is found that he indeed
committed rape and the child was conceived as a result of such rape.

JUSTIFICATION: In March of 2010, Shauna Prewitt, a rape survivor and
J.D. candidate at Georgetown Law School published a scholarly piece
examining the legal protections afforded to women who mother through
/ape The piece exposed a legal system that affords women few
protections. In fact, most states give a man who has fathered through
rape the same legal rights to custody and visitation as any other
father. It is impossible to imagine the anguish a victim endures when
they are forced to not only interact with their assailant, but
actually share parental responsibilities. Sadly, very few states,
including New York, have passed legislation dealing with this very
important issue. When looking at these cases, we must take into
account all the legal processes that are involved with parental
rights.


The requirement of a conviction of rape is a central question when
analyzing this issue. In 2010, sixteen sates had statutes that protect
a raped woman who chooses to raise her child. Ten of those sixteen
states required a criminal conviction to begin the process of
terminating or restricting parental rights. This is problematic
because few rapes are even brought to trial and even when they are,
many defendants are allowed to plead guilty to a lesser offense.
Therefore, this legislation looks to establish a hearing process that
makes "clear and convincing evidence" sufficient grounds for the
restriction or stripping of parental rights.

This legislation would also protect women who choose to put a child
conceived through rape up for adoption. Current New York State Law
requires that unless there is a conviction of rape in the first
degree, a woman must notify the father (rapist) of a decision to put
the child up for adoption. This legislation expands the conviction to
include rape in the second and third degree and adds "clear and
convincing evidence" at a hearing to the statute. Therefore, this
proposed legislation seeks to protect victims of rape and begin their
journey to recovery should they choose to put the child up for
adoption without fearing retaliation from the perpetrator.

This legislation also mandates that a court terminate the parental
rights of any parent who is convicted of rape in the first, second, or
third degree. If someone is convicted of rape, they should have no
contact with the child. There have been cases where courts have
determined that terminating parental rights is not in the best
interest of the child because of the period of time between a
perpetrator's arrest and conviction where they have established a
presence with the child. Therefore, leaving the termination of
parental rights to the discretion of the court following a conviction
is unnecessary and unreliable.

To allow a rapist to establish a parental presence in the life of a
child is unacceptable and can be traumatic to both the mother and
child. Perpetrators can also use the interim between arrest and
conviction to intimate the mother into dropping the charges, often
using the custody of the child as leverage. Therefore, this
legislation proposes that no custody or visitation rights be granted
to anyone charged with rape until the conclusion of the proceedings

Finally, by establishing a process by which a woman can petition a
court to conduct a hearing for conception by rape, protects a woman
from a drawn out legal proceeding where variables are out of her
control. This hearing process also protects the accused by setting
"clear and convincing" as the standard for the stripping of parental
rights and leaving the decision to the discretion of the court.

This legislation will continue New York's position as a leader in
women's rights. Current New York law does not protect women who
conceive a child through rape. Women who choose to keep a child
conceived through rape should not be forced to relive their rape day
after day by interacting with the rapist. We can and must do better.

LEGISLATIVE HISTORY: New Bill

FISCAL IMPLICATIONS: To be determined


EFFECTIVE DATE: This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5001

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 3, 2013
                               ___________

Introduced  by Sen. STAVISKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

AN ACT to amend the domestic relations law, the penal law and the family
  court act, in relation to termination of parental rights in cases of a
  child conceived through rape

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  1 of section 111-a of the domestic relations
law, as amended by chapter 353 of the laws of 1993, is amended  to  read
as follows:
  1.  Notwithstanding  any  inconsistent provisions of this or any other
law, and in addition to the notice requirements of any law pertaining to
persons other than those specified in subdivision two of  this  section,
notice  as  provided  herein  shall be given to the persons specified in
subdivision two of this section of  any  adoption  proceeding  initiated
pursuant  to  this  article  or  of any proceeding initiated pursuant to
section one hundred fifteen-b relating to the revocation of an  adoption
consent,  when  such  proceeding  involves  a  child born out-of-wedlock
provided, however, that such notice shall not be required to be given to
any person who previously  has  been  given  notice  of  any  proceeding
involving  the child, pursuant to section three hundred eighty-four-c of
the social services law, and provided further that notice in an adoption
proceeding, pursuant to this section shall not be required to  be  given
to  any  person  who  has  previously  received notice of any proceeding
pursuant to section one hundred fifteen-b. In  addition  to  such  other
requirements  as  may be applicable to the petition in any proceeding in
which notice must be given pursuant to this section, the petition  shall
set  forth the names and last known addresses of all persons required to
be given notice of the proceeding, pursuant to this section,  and  there
shall  be shown by the petition or by affidavit or other proof satisfac-
tory to the court that there are no persons other than those  set  forth

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10510-01-3

S. 5001                             2

in the petition who are entitled to notice. For the purpose of determin-
ing  persons entitled to notice of adoption proceedings initiated pursu-
ant to this article,  persons  specified  in  subdivision  two  of  this
section  shall  not include any person who has been convicted of rape in
the first degree [involving forcible compulsion, under  subdivision  one
of  section 130.35 of the penal law,] AS DEFINED IN SECTION 130.35, RAPE
IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30 OR RAPE IN  THE  THIRD
DEGREE  AS  DEFINED  IN  SECTION 130.25 OF THE PENAL LAW, OR WHERE IT IS
ESTABLISHED AFTER A HEARING, BY CLEAR AND CONVINCING EVIDENCE, THAT SUCH
PERSON COMMITTED ANY SUCH OFFENSE, when the child who is the subject  of
the proceeding was conceived as a result of such rape.
  S 2. Section 130.92 of the penal law is amended by adding a new subdi-
vision 4 to read as follows:
  4. THE PARENTAL RIGHTS AND RESPONSIBILITIES WITH RESPECT TO A CHILD OF
A  PARENT  CONVICTED OF THE CRIME OF RAPE IN THE FIRST DEGREE AS DEFINED
IN SECTION 130.35 OF THIS ARTICLE, RAPE IN THE SECOND DEGREE AS  DEFINED
IN  SECTION  130.30  OF  THIS  ARTICLE,  OR  RAPE IN THE THIRD DEGREE AS
DEFINED IN  SECTION  130.25  OF  THIS  ARTICLE,  THAT  RESULTED  IN  THE
CONCEPTION  OF SUCH CHILD SHALL BE TERMINATED IN ACCORDANCE WITH ARTICLE
SIX OF THE FAMILY COURT ACT.
  S 3. Subdivision 5 of section 240 of the domestic  relations  law,  as
added  by  section 103 of chapter 398 of the laws of 1997, is renumbered
subdivision 6 and a new subdivision 7 is added to read as follows:
  7. NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW TO THE CONTRARY,  NO
COURT  SHALL AWARD CUSTODY TO A PARENT WHO HAS BEEN CHARGED WITH VIOLAT-
ING SECTION 130.25 (RAPE IN THE  THIRD  DEGREE),  130.30  (RAPE  IN  THE
SECOND  DEGREE),  OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW,
WHERE THE CHILD THAT SUCH PARENT SEEKS  CUSTODY  OR  VISITATION  OF  WAS
CONCEIVED  AS  A  RESULT  OF  SUCH  RAPE,  UNTIL  THE  CONCLUSION OF ALL
PROCEEDINGS ASSOCIATED WITH SUCH CHARGES. NEITHER CUSTODY NOR VISITATION
SHALL BE AWARDED TO A PARENT WHO HAS BEEN CONVICTED OF VIOLATING SECTION
130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE IN THE  SECOND  DEGREE),
OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW.
  S 4. Article 6 of the family court act is amended by adding a new part
6 to read as follows:

                                 PART 6
     TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
                                  RAPE
SECTION 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION
               BY RAPE.
        682. HEARING.
  S  681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
RAPE. 1. A PROCEEDING FOR TERMINATION OF PARENTAL RIGHTS ON THE  GROUNDS
OF  A FINDING OF CONCEPTION BY RAPE IS ORIGINATED BY A PETITION ALLEGING
THAT THE RESPONDENT COMMITTED THE CRIME OF RAPE IN THE FIRST  DEGREE  AS
DEFINED  IN  SECTION  130.35,  RAPE  IN  THE SECOND DEGREE AS DEFINED IN
SECTION 130.30, OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25
OF THE PENAL LAW, AND THAT THE CHILD WAS CONCEIVED AS A RESULT  OF  SUCH
RAPE.  EXCEPT AS OTHERWISE PROVIDED IN THIS PART, THE PROVISIONS OF PART
ONE OF THIS ARTICLE SHALL APPLY TO ALL PROCEEDINGS.
  2. AT THE CONCLUSION OF THE HEARING UNDER SECTION SIX HUNDRED  EIGHTY-
TWO  OF THIS PART THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS AND
RESPONSIBILITIES OF THE RESPONDENT IF THE RESPONDENT IS FOUND  BY  CLEAR
AND  CONVINCING  EVIDENCE  TO HAVE COMMITTED RAPE IN THE FIRST DEGREE AS
DEFINED IN SECTION 130.35, RAPE IN  THE  SECOND  DEGREE  AS  DEFINED  IN

S. 5001                             3

SECTION  130.30 OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25
OF THE PENAL LAW, AND THE CHILD WAS CONCEIVED AS A RESULT OF  SUCH  ACT.
AN  ORDER OF DISPOSITION SHALL BE MADE, PURSUANT TO THIS SECTION, SOLELY
ON  THE  BASIS OF THE BEST INTERESTS OF THE CHILD, AND THERE SHALL BE NO
PRESUMPTION THAT SUCH INTERESTS  WILL  BE  PROMOTED  BY  ANY  PARTICULAR
DISPOSITION.
  S  682.  HEARING.  THE  COURT  SHALL HOLD A HEARING UNDER THIS PART TO
DETERMINE WHETHER THE ALLEGATIONS IN THE PETITION  THAT  THE  RESPONDENT
COMMITTED RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN
THE  SECOND  DEGREE  AS  DEFINED  IN SECTION 130.30 OR RAPE IN THE THIRD
DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THAT THE CHILD
WAS CONCEIVED AS A RESULT  OF  SUCH  ACT  ARE  SUPPORTED  BY  CLEAR  AND
CONVINCING  PROOF. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE MAY BE
ADMITTED IN A HEARING PURSUANT TO THIS  SECTION.  A  CONVICTION  OF  THE
RESPONDENT  ON  THE  CHARGES ALLEGED SHALL NOT BE REQUIRED FOR A FINDING
UNDER THIS SECTION.
  S 5. This act shall take effect immediately.

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