The Volokh Conspiracy

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Rape allegations and child custody


I thought I'd pass along an excerpt of an interesting case that was just posted on Westlaw, Matter of P.P. v. C.G. (N.Y. Family Ct. Sept. 8, 2014). I can't speak to how representative the outcome is, and I leave it to you to decide who is right and who is wrong (or that you can't tell, without observing the witnesses' testimony—and maybe not even then). Note that the issue here isn't whether the allegations have been proved beyond a reasonable doubt, as it would be in criminal cases. Rather, the issue is what the preponderance of the evidence (including with regard to the rape allegations) shows about the best interests of the child.

An excerpt describing the mother's testimony (the opinion is quite long, which is why I offer only excerpts, though even they are pretty long):

[Mother] testified that she met [Father] on October 7, 2010 during an interview at Best Buy [where Father was a Store Manager until 2011 -EV]. [Mother] testified that [Father] interviewed her for a second interview as a cashier at said establishment. [Mother] testified that they initially engaged in usual work conversation which led to discussion of their common interests including music, learning to play the piano, and recording music at [Father]'s studio.

[Mother] testified that [Father] began to flirt with her and she became uncomfortable, but she flirted back. [Mother] testified that she allowed the flirtation because she needed the job and the [Father] was her supervisor's supervisor.

[Mother] testified that during work hours, [Father] would come to the department she was at to check on her and often complimented her. [Mother] testified that during her online training, [Father] overheard her conversation about her sexual preference, and then stated to [Mother] that if she dated the proper person her "lesbian problem would be fixed." [Footnote: [Mother] testified that [Father] told her that she is not a lesbian and that it is just a phase. [Mother] testified that [Father] tried to convince her that she is not gay.] [Mother] testified that he was not mean about it, however it made her feel uncomfortable, insulted and hurt. [Mother] testified that [Father] then invited her to his birthday dinner and she accepted.

[Mother] testified that the parties went to dinner together and spoke about music. [Mother] testified that they talked about recording a song at his home and [Mother] agreed to go to his home after dinner for that purpose.

[Mother] testified that while at [Father]'s home she had an alcoholic beverage and they talked about her sex life. [Mother] testified that [Father] stated that he has never had oral sex with a woman and asked to perform such acts on her. [Mother] testified that she was hesitant at first but then agreed. [Mother] testified that [Father] tried to penetrate her; she stopped him and he stopped.

[Mother] testified that she spent the night at [Father]'s home and while he was at work the following day, she recorded a song in his studio. [Mother] testified, that night [Father] asked to perform oral sex on her again and she agreed.

[Mother] testified that [Father] then tried to penetrate her and she tensed up and hesitated. She then testified that he stated, "Please don't do this to me again." [Mother] testified that she laid there and cried and when he was done he asked her "What's wrong?" She testified that she told him "I feel like you just raped me."

[Mother] then testified that [Father] apologized to her and held her and she put her head on his chest and he rocked her. [Mother] testified that she stayed at [Father]'s home that night and left the next day.

[Mother] testified that she lost contact with [Father] for a period of time, but they did engage in sexual intercourse again in February or March of the following year.

[Mother] testified that when they began to speak again, [Mother] was having issues with her then partner, Ms. J. During that time, [Mother] stated she was in an "on again off again" relationship with Ms. J whom she met in school in 2010. [Mother] testified that [Father] assisted her if she needed rides to work or to school.

[Mother] testified that she spoke to [Father] about her relationship and the pregnancy. [Mother] testified that, at that time, she considered having an abortion. [Mother] testified that [Father] told her he was dating Ms. H at the time but that he would date [Mother] if she decided to leave Ms. J. [Mother] also testified that while she considered having a relationship with [Father], at that point, and having him as a father figure in the child's life, she decided to continue the relationship with Ms. J instead.

[Mother] testified that [Father] threatened to advise Ms. J that he could possibly be the father of the child and not the donor that she and [Mother] chose. [Mother] testified that Ms. J first found out about [Father] when [Mother] received the Petition for Paternity and their relationship ended after the DNA results.

[Mother] testified that during the paternity proceedings she testified that there was another man, B. B., hereinafter "Mr. B," who could be the father of the child. She testified that she and Ms. J chose Mr. B as their donor, and that Mr. B signed a contract. [Mother] testified that in the contract with Mr. B, he agreed to relinquish all rights to the child and to donate his sperm.

[Mother] testified that after the results of the DNA test, she tried to deny [Father]'s paternity and informed the Court that [Father] raped her. [Mother] testified that she never filed a criminal complaint against [Father] in relation to the alleged rape.

[Mother] also testified, at the May 17, 2013 paternity hearing that she did not want to ruin [Father]'s life, however she did not think it was fair that he be a part of the child's life when she planned to have this child with her partner, Ms. J. [Mother] testified there was not supposed to be a father in the child's life, and [Father] was not supposed to be the child's father.

Subsequently, at the June 24, 2014 hearing, [Mother] testified that she did not want someone who raped her, specifically the [Father], to be a part of the child's life. During the May 17, 2013 hearing, [Mother] also testified, and affirmed during her testimony on June 24, 2014 that [Father] is a "good guy" and a mentor to her.[Mother] testified she lived with Ms. J in a one bedroom apartment, in Staten Island, while they dated.

At one point, [Mother] testified, Ms. J and she were in a "rocky" relationship and [Mother] went to live with her aunt in Brooklyn. She testified that [Father] assisted her in that move. [Mother] testified that she and Ms. J "worked it out" and she went back to the one bedroom apartment in Staten Island. [Mother] testified that she and Ms. J then moved into the two bedroom apartment for which [Father] provided her with twelve hundred dollars for the security deposit. [Mother] testified that the only other place that she has resided in the past three years, is the three bedroom apartment that she is now living in with Ms. M….

And an excerpt from the judge's conclusion:

The Court did not find [Mother]'s testimony credible. [Mother]'s demeanor was inconsistent with the seriousness of what she was alleging and testifying to in Court. In speaking of the alleged rape, and the child's visitation with the [Father], she often smiled and laughed; showing a lack of seriousness for the situation at hand.

[Mother] also made many contradicting statements regarding the [Father] and the importance of the relationship between the [Father] and child. The Court finds [Mother]'s testimony incredulous.

[Mother] testified that the [Father] has been a mentor to her on more than one occasion, while also alleging [Father] raped her and should not have a right to be in the child's life. Additionally, she testified that [Father] was not supposed to be the father of her child. Despite the alleged rape, [Mother] remained in contact with [Father], while simultaneously depriving [Father] access to his child.

[Mother] also indicated, by and through her attorney, that she planned to file criminal charges against [Father] while also testifying her hesitancy to have him convicted of rape and maintaining contact with him because "he isn't a bad guy." [Mother] alleges that there is no attachment between the child and father and states that she should have custody of the child because she is "allowing a relationship between her and her father under legal circumstances."

[Mother]'s contradicting testimony and actions [see the opinion for more -EV] indicate, that if awarded sole custody, [Mother] would not be able to promote or foster a positive relationship between [Father] and the child and would intentionally act to undermine the relationship between them. This would be extremely harmful to the child's well-being and contrary to her best interest….

Although the child has always resided with [Mother], and stability is an important consideration and has been found to be in the child's best interest, it cannot be the decisive factor. A change in custody may prove temporarily disruptive to the child, however, this is not dispositive. All changes in custody are disruptive. In this case, the child's emotional stability will benefit from a change in custody, despite the fact that the child has always resided with the [Mother].

[Father] has demonstrated financial and housing stability and great home environment. He has been a Store Manager at Starbucks Coffee Corporation for the last three years. Prior to that he was a Store Manager at Best Buy, where he and [Mother] met. [Father] has resided in the same home for 2 years; with Ms. H, his son and his stepson….

[Father] describes a very loving relationship between the child and her sibling, [C], who is three years old. [Father] states that they participate in activities together as a family including family outings and have dinner daily together. When the subject child is with the [Father] she sleeps in her own bed in the bedroom with [Father] and Ms. H, while the other two children, both young boys, share a room. [Father] has stated that if granted custody of the subject child, he would move to a larger apartment so that she may have her own room. His partner, Ms. H is a stay at home mother and cares for the children while [Father] is at work.

[Mother]'s housing stability is questionable. [Mother] and her current partner, Ms. M lives in a three bedroom apartment in Far Rockaway, Queens, New York…. Prior to her current relationship, [Mother] was with her "on again off again partner" Ms. J; with whom the child shares the last name.

During that time, [Father] alleges that [Mother] relocated six times; including two occurrences whereby [Father] himself helped facilitate the moves and provided financial assistance for [Mother] to obtain one of such stated residences. These moves included a move from Staten Island for being evicted and two moves from an apartment shared with Ms. J, during their break ups. Notably, [Mother]'s testimony corroborated [Father]'s testimony that he had assisted in moving her and the child and gave her money for one of the apartments.

[Mother] testified that she and Ms. J were in an "on again, off again" relationship with Ms. J. for four (4) years, until recently. [Mother] testified that Ms. J and Ms. J's mother still maintains a relationship with the child and that the child also shares a close relationship with her current partner, Ms. M. While [Mother] testified that all this extra loving is good for the child, she has expressed a very low opinion of [Father]'s role as a parent and does not view his participation in the child's life as significant.

[Mother] has made it clear that her intention was to have no involvement by the father. [Mother] prevented contact with the [Father] and the child for the first two years of the child's life, even after the paternity results ruled him the father. [Mother] continues to create many obstacles to prevent the [Father] from building a relationship with the child. [Mother] filed a motion to have the paternity vacated and allowed visits only after an Order from this Court. Furthermore, [Mother] has testified that [Father] was not supposed to be the father of the child and she does not believe it is fair that [Father] be in the child's life because of the alleged rape.

Moreover, [Mother]'s intention was to have a child with her partner, Ms. J, with no involvement from a male figure. [Mother] did not want a man coming around to be a part of the child's life. [Mother] believes that the limited contact between the child and [Father] during the first year of her life has not affected the father-daughter relationship and that any affect on the bonding can be repaired. Yet, [Mother] had the opportunity to witness and enjoy all the first milestones of the child's life while preventing [Father] from such bonding.

This Court also finds that it would serve the child's best interest to live with her sibling, C. "The stability and companionship to be gained from keeping the children together is an important factor for the court to consider." [Father] testified that the relationship between the subject child and her brother, C is very loving. [Mother] testified that she tells her daughter she is going to see her sibling in order to make her excited about [Father]'s parenting time. Additionally, [Father] testified that during his parenting time, both of his children and his stepson J, engage in family outings and activities as a family. While the child and J are not biological siblings, it is clear that all three children engage in familial activities thereby bonding and developing a sibling relationship.

The Court finds that the child enjoys a loving relationship with both her parents and ought to continue to have frequent contact with both parents.

Wherefore, based upon the foregoing, this Court finds that given the factors enumerated above, the child's best interests warrant that sole legal and physical custody of the subject child, C.J., be granted to [Father], P.P., with parenting time granted to [Mother], C.G., in accordance to this Court's Final Order of Custody and Visitation that follows.