The Statute:

The Washington state statute says if a person sexually assaults another person, and a baby is born as a result, that person does not have the right to be a legal parent to the child. This law is codified at RCW 26.26A.465. Specifically, the sexual assault survivor must be able to prove either

• (a) the abuser was convicted of or pled guilty to the sexual assault, or
• (b) through clear, cogent, and convincing evidence that the abuser committed sexual assault against the child’s parent, and the child was born within 320 days.

If the survivor is able to prove either (a) or (b), the court must rule that the abuser is not a legal parent of the child, and has no right to residential time with the child or decision-making responsibilities for the child. The abuser can still be ordered to provide child support for the child. However, the survivor can request that no child support be ordered if there is a safety concern.

The Case Law:

The Washington State Court of Appeals recently published an opinion clarifying how a survivor can prove to the court that sexual assault occurred. As mentioned above, the legal standard the statute requires is “clear, cogent, and convincing evidence.” The Court points out that the clear, cogent, and convincing standard must satisfy the “highly probable” test. The “highly probable” test requires that the evidence provided show that the ultimate fact at issue is highly probable. Further, the court must be convinced that the evidence provided is substantial enough to persuade a fair-minded, rational person that what is purported to be true is what actually occurred. The survivor must provide enough evidence to persuade a fair-minded, rational person that a sexual assault occurred, and that a child was born within 320 days. In the recently published opinion, the ultimate fact at issue was whether sexual assault occurred and a child was born within 320 days. In that case, the survivor was able to provide “graphic testimony [that] directly supported her allegation that [the child] was conceived through a violent assault.” She also presented threatening letters from the abuser, as well as testimony from other people in her life that supported her testimony. The court examined all the evidence, and determined it was “highly probable” the child was conceived as a result of sexual assault, and the abuser was prohibited from being established as the child’s parent.

Understanding the statute and the case law is helpful. Additionally, though, it is important to understand the legal procedure to prevent a sexual assault perpetrator from establishing parentage over a child that is the result of the sexual assault. This is important because once a person has been determined to be a biological parent of a child, that parent can then petition the court for visitation time with the child.

The Legal Process:

If the abuser is not on the birth certificate, their first step would be to file a form called Petition to Decide Parentage, asking the court to determine whether that person is the biological parent of the child. The court determines whether a person is a biological parent either by agreement of the parties or a genetic test. If the child is born as a result of sexual assault and the perpetrator files a Petition to Decide Parentage, the sexual assault survivor should file a form called Sexual Assault Allegation. Once that form has been filed, the court will not order visitation time between the sexual assault perpetrator and the child prior to conducting a fact-finding hearing unless both of the following criteria are satisfied:

• (i) The alleged perpetrator has a bonded and dependent relationship with the child that is parental in nature; and
• (ii) the court specifically finds that it would be in the best interest of the child if such temporary orders are entered.

The fact-finding hearing is similar to a trial, but the only issue before the court is whether sexual assault occurred and a child was born within 320 days. Prior to the fact-finding hearing, both sides, and their witnesses, if any, file affidavits with the court. These affidavits are statements sworn under oath. Fourteen days prior to the fact-finding hearing, the parent alleging sexual assault should file an affidavit that sets forth specific facts supporting the allegation. This parent must prove that sexual assault occurred, and a child was born within 320 days. Evidence of timing is important. This parent should also have any witnesses who can support the allegations submit affidavits as well. These witnesses can support the allegations by providing their own observations of the parties and/or the sexual assault. Five days prior to the fact-finding hearing, the other parent and their supporting witnesses may file opposing affidavits with the court.

At the fact-finding hearing, both sides may have witnesses testify on their behalf. Like all family law trials, there is no jury. The judge considers all evidence provided, including the written affidavits and oral testimony provided at the fact-finding hearing. If the judge determines that the allegation has been proven through the legal standards identified above, the judge must order the perpetrator is not a legal parent of the child, has no right to residential time with the child, and has no right to decision-making responsibilities for the child.

Final Thoughts:

I am a legal professional, and I am approaching this article from an objective perspective. When dealing with topics as difficult as sexual assault, it is often necessary to keep my sanity. I say this to remind you that this is very tough stuff. If you are looking at this article because this legal situation feels similar to yours or someone you know, please remember to give yourself grace when dealing with this. This is hard, but help is out there, and you don’t have to deal with this on your own. If you feel you need help in this area or would simply like more information, please don’t hesitate to reach out to Navigate Law Group. You can schedule a full consultation with one of our many experienced family law attorneys. Or you can sign up for a free 20-minute consultation through our free weekly virtual clinic.