Implications of Rape in Custody/Parental Rights

Pennsylvania has some of the best protections nationwide in the instance of mothers who opt to have a child following a rape. First, there is the potential that the rights of the natural father/perpetrator of the rape can be terminated. Pursuant to 23 Pa CS 2511(a), which lays out the grounds on which a parent’s rights can be involuntarily terminated, paragraph (7) provides for termination where “the parent is the father of a child conceived as a result of rape or incest.” While it is a plus that the law specifically allows termination of parental rights in a rape case, a party petitioning for involuntary termination will still need someone willing to adopt the child simultaneously with the termination which may cause a dilemma.

In addition to provisions regarding involuntary termination of parental rights, rape is also expressly addressed in Pennsylvania’s custody laws. Under 23 Pa CS 5329, the court is to consider criminal convictions, not just official charges, when making a custody decision. However, while the court must consider a rape charge, that doesn’t mean it can’t grant the father/perpetrator any custody time. Instead, the rape charge would just be one of several factors for the court to consider in determining what’s in the child’s best interests as is required for all custody decisions.

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Factors in Equitable Distribution

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Those factors are listed in 23 Pa C.S. 3502 and include the following:

(1) Length of the marriage; (2) Any prior marriage of either party; (3) Age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) Contribution by one party to the education, training or increased earning capacity of the other party; (5) Opportunity of each party for future acquisitions of capital assets and income; (6) Sources of income of both parties, including but not limited to, medical, retirement, insurance or other benefits; (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker; (8) Value of the property set apart to each party

(9) Standard of living of the parties established during the marriage; (10) Economic circumstances of each party at the time the division of property is to become effective; (10.1) Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain; (10.2) Expense of sale, transfer or liquidation associated with a particular asset, which expenses need not be immediate and certain; (11) Whether the party will be serving as the custodian of any dependent minor children

The remainder of 23 Pa C.S. 3502 goes on to discuss the courts powers relating to who can reside in the marital home pending the divorce, maintaining life insurance policies, interim partial distributions, and enforcement powers in the event of contempt of a court order on equitable distribution. Parties should keep these factors in mind when fashioning a settlement agreement of their own. If the parties have to go to court for equitable distribution, they will be required to submit a statement beforehand laying out what they allege is the marital property at issue, how the factors listed affect their case, and what they are ultimately seeking as an “equitable” distribution.

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