September 1, 2014

HB 14-1162: Allowing Victims of Sexual Assault Who Conceive Children as a Result of the Assault to Terminate Perpetrator’s Parent-Child Legal Relationship

On January 17, 2014, Rep. Lois Landgraf introduced HB 14-1162 - Concerning Protection of the Victim of a Sexual Assault in Cases where a Child was Conceived as a Result of the Sexual Assault, and, in Connection Therewith, Making Legislative Changes in Response to the Study by and the Report of the Recommendations from the Task Force on Children Conceived Through RapeThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Last session, the general assembly passed a bill that allows the victim of a sexual assault in which a child was conceived and in which the person who committed the sexual assault was convicted to file for the termination of the parent-child legal relationship of the person who committed the sexual assault. In that same bill, the general assembly created a task force on children conceived by rape to study whether changes should be made to that statute and to study issues associated with parental rights in cases where a child was conceived as a result of the sexual assault but a conviction did not occur. This bill makes legislative changes in response to the study and report prepared by the task force.

The bill makes the following changes to provisions passed last year for cases involving convictions:

  • Adding more due process protections, such as specifying the notice to the respondent, setting a date for hearing the petition, and notifying the Indian tribe if the child is an Indian child in accordance with the federal “Indian Child Welfare Act,”
  • Adding more protections for the victim and the child, including protecting the identity of the victim and the child in the summons, ordering protective measures for the victim in the courtroom, and treating child support payments as confidential;
  • Providing legal counsel and waiving filing fees for indigent victims;
  • Providing for admission of parentage and for genetic testing to confirm paternity and allowing the court to order the parent against whom the petition has been filed to pay for genetic testing;
  • Stating that the court shall not presume that having only one remaining parent is contrary to the child’s best interests;
  • Creating a process for the parent whose parent-child legal relationship is terminated to provide medical and family information to be shared with the child and the victim in a way that protects the child from knowing the name of the person;
  • Clarifying what happens if the court denies the petition to terminate the parent-child legal relationship, including that the juvenile court has continuing jurisdiction of the matter and has the authority to enter an order allocating parental responsibilities between the parties, including an order to not allocate parental responsibilities to the parent against whom the petition was filed.

The bill repeals the statutes enacted last year that provided for a stay of a civil domestic relations proceeding or a paternity action while criminal charges of sexual assault brought against the alleged perpetrator are resolved.

The bill creates a process to allow the victim of a sexual assault in cases where a child was conceived and in which a conviction did not occur to file a petition in juvenile court to prevent future contact with and to terminate the parent-child legal relationship of the parent who allegedly committed the sexual assault. This process is similar to the process for petitions involving convictions but does not include a rebuttable presumption that it is in best interests of the child to terminate the parent-child legal relationship. If the court denies the petition to terminate the parent-child legal relationship, the juvenile court has continuing jurisdiction and the authority to enter orders on allocation of parental rights, including an order to not allocate parental rights to the other parent. The juvenile court may order the parent to submit to a sex offense-specific evaluation and parental risk assessment that may factor in the allocation of parental rights and responsibilities and parenting time. The court shall order the parent who is found to have committed the sexual assault to pay for the costs of the evaluation and the assessment. All of the changes made in this bill to the process for petitions involving convictions are also included in the process for petitions for nonconvictions.

Since some issues involving the child conceived by a sexual assault might start in the domestic relations arena instead of in a juvenile proceeding, the bill gives the domestic relations courts the authority to allocate parental rights and responsibilities, to address decision-making between the victim and the other parent in these cases, and to issue protective orders. The provisions are similar to the considerations that the court uses to address cases involving domestic violence. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, then it shall not be in the best interests of the child to allocate sole or split decision-making to the person who was found to have committed sexual assault or to allocate mutual decision-making with respect to any issue over the objection of the other party or the guardian ad litem. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, the court shall consider whether it is in the best interests of the child to prohibit or limit the parenting time of that party with the child. Prior to entering an order relating to parenting time or parental contact, the court may order that party to submit to a sex offense-specific evaluation and a parental risk assessment in Colorado. The court shall order the parent who is found to have committed the sexual assault to pay the costs of the evaluation and parental risk assessment.

In addition, in cases where the court has found that the child was conceived as a result of sexual assault, a domestic relations court may not modify a prior order regarding allocation of decision-making or modify a prior order regarding parenting time, unless it finds that the child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development.

Under existing law, when a parent voluntarily relinquishes a child so that the child may be adopted, there is a private action filed to terminate the parent-child legal relationship of the other parent. A victim of sexual assault might want to voluntarily relinquish the child conceived from the sexual assault for adoption and terminate the other parent’s rights. This bill amends the statute on termination in voluntary relinquishment cases so that the court may order the termination based on a finding that the other parent is unfit due to a history of violent behavior, which may include an incidence of sexual assault that resulted in the conception of the child.

The CBA LPC has voted to oppose the bill. The bill has been assigned to the Judiciary and Appropriations Committees.

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