Can a Sex Offender Get Custody of His Child?

St. Louis Divorce Attorney, Jonathan Marks

An unusual case out of Michigan recently brings to light some interesting issues relating to paternity and custody when the father happens to be a convicted sex offender.

Whenever a mother seeks financial support for her child from the state because she qualifies for such support based on income, the state generally begins an inquiry about the parentage of the child. Why? Quite simply, the state would prefer the natural father pay for the support of the child rather than the state, so long as the natural father can be identified and has the ability to pay.

When a young woman applied for aid in Michigan, the state Department of Human Services began an inquiry into the child’s parentage. The mother provided the name and address of the biological father; the state contacted the father and requested he submit to a DNA test. The father did so and the test revealed he was in fact the biological father.

At this point, the state procedure in Michigan is for the prosecuting attorney’s office to pursue an administrative order establishing paternity and child support. The prosecutor in this case never investigated the background of the father – a twice convicted rapist – or the circumstances of the conception of the child from a sexual assault. Instead, the prosecutor thought this was a typical case and asked the mother to sign a consent form that would allow the support case to proceed. Things get confusing here – somehow the case also included a custody request. By the time the case was presented to the judge, it appeared a simple consent case – even though the mother did not consent to a custody award. The judge signed off on the form judgment and ordered not only support but awarded joint custody rights to the father, the sexual offender.

After the court became aware of the history of the father, the court stayed its order and the case is in the process of settling where the father will not have custody rights.

How could this happen?

According to the news stories, the prosecutor has the duty to investigate and apparently did not do enough to uncover the background. It seems that some process should be in place so that once a registered sexual offender becomes the target of a child support inquiry, the status of the offender pops up in the computer immediately so that no court would face this situation.

In Missouri, the Division of Children’s Services has the responsibility for pursuing reimbursement cases like the one in Michigan, and normally they run a background check on any identified father. Missouri law specifically prohibits any court from awarding a registered sex offender or a person convicted of a long list of sexual offenses from having any custody rights to a child. So, in the unlikely event something like the Michigan situation happened in Missouri, the order would become immediately void because no judge has the authority to grant such custody.

If you have questions about custody and sexual offenders, contact us – we can help.