Should You Raise Statutory Rape Charges Against the Other Parent in a Custody Dispute

My question involves a child custody case from the State of: CA
I have had shared custody of my 7 year old for 7 years with his father. I have recently pressed statutory rape charges on him and we are in a custody battle. Our final date is in 2 Days and we will settle the matter of custody then. My question is, should I mention the case to the judge? I have a case number but no charges have been filed. Could I use that as a reason for full custody? His father is a bad person and I am seeking justice for that, I just don’t know how to bring it to the custody case

The judge knows how old you are and how old the child is. He can probably do the math.

This is a conversation you should be having with your custody lawyer, based upon the full facts of the case.

You have made complaint to the police regarding the alleged statutory rape. You cannot yourself “press charges” for this; it will be the district attorney (DA) who files any charges. At the moment what you have is an unproven allegation. Under California law, one of the factors the court will consider in a custody hearing is any history by the parent seeking custody of “abuse” of either (1) any child or (2) the other parent. See California Family Code 3011. Thus, to the extent that statutory rape is considered a form of abuse it would be relevant and a factor the court must consider. Just understand that the fact that it is still an unproven allegation at this stage and that it took place seven years may mean that it doesn’t count as a huge factor in the decision. The details of what occurred would have some bearing on that. For example, it is not at all uncommon in California or any other state for teens who are underage and dating to have sex and, unfortunately, to end up having children before they are ready. The mere fact that the mother was underage in that situation and thus a victim of statutory rape would not forever bar her former boyfriend from custody/visitation with the child. Indeed, he has had joint custody with you for the last 7 years, and I think it is the history of what has occurred during that time, especially recently, that will make the biggest difference. How has he been as a parent? When the child is with him, are there problems with how he treats the child? Those things are going to be very important factors. I’m not saying that the statutory rape won’t make any difference. It might. But I think it just won't be the thing that carries the day for you.

Quote:

---

Quoting PayrolGuy

---

The judge knows how old you are and how old the child is. He can probably do the math.

---

That’s the problem is that they never have as it is a different legal issue. He is 30, I am 25 and our son is 7.

Quote:

---

Quoting Taxing Matters

---

You have made complaint to the police regarding the alleged statutory rape. You cannot yourself “press charges” for this; it will be the district attorney (DA) who files any charges. At the moment what you have is an unproven allegation. Under California law, one of the factors the court will consider in a custody hearing is any history by the parent seeking custody of “abuse” of either (1) any child or (2) the other parent. See California Family Code 3011. Thus, to the extent that statutory rape is considered a form of abuse it would be relevant and a factor the court must consider. Just understand that the fact that it is still an unproven allegation at this stage and that it took place seven years may mean that it doesn’t count as a huge factor in the decision. The details of what occurred would have some bearing on that. For example, it is not at all uncommon in California or any other state for teens who are underage and dating to have sex and, unfortunately, to end up having children before they are ready. The mere fact that the mother was underage in that situation and thus a victim of statutory rape would not forever bar her former boyfriend from custody/visitation with the child. Indeed, he has had joint custody with you for the last 7 years, and I think it is the history of what has occurred during that time, especially recently, that will make the biggest difference. How has he been as a parent? When the child is with him, are there problems with how he treats the child? Those things are going to be very important factors. I’m not saying that the statutory rape won’t make any difference. It might. But I think it just won't be the thing that carries the day for you.

---

I don’t expect it to win the case for me, I am just curious as to whether or not to bring it up to the judge, and how if I do. I know that the DA files charges however with the situation at hand I do have a say in what happens in the next few steps.

The fact that you reported it to police after becoming involved in a custody dispute doesn't reflect well on you at all. You are free to bring it up but I doubt it will be of any benefit. It reeks of retaliation.

Quote:

---

Quoting Taxing Matters

---

You have made complaint to the police regarding the alleged statutory rape. You cannot yourself “press charges” for this; it will be the district attorney (DA) who files any charges. At the moment what you have is an unproven allegation. Under California law, one of the factors the court will consider in a custody hearing is any history by the parent seeking custody of “abuse” of either (1) any child or (2) the other parent. See California Family Code 3011. Thus, to the extent that statutory rape is considered a form of abuse it would be relevant and a factor the court must consider. Just understand that the fact that it is still an unproven allegation at this stage and that it took place seven years may mean that it doesn’t count as a huge factor in the decision. The details of what occurred would have some bearing on that. For example, it is not at all uncommon in California or any other state for teens who are underage and dating to have sex and, unfortunately, to end up having children before they are ready. The mere fact that the mother was underage in that situation and thus a victim of statutory rape would not forever bar her former boyfriend from custody/visitation with the child. Indeed, he has had joint custody with you for the last 7 years, and I think it is the history of what has occurred during that time, especially recently, that will make the biggest difference. How has he been as a parent? When the child is with him, are there problems with how he treats the child? Those things are going to be very important factors. I’m not saying that the statutory rape won’t make any difference. It might. But I think it just won't be the thing that carries the day for you.

---

Quote:

---

Quoting LegalWriter

---

The fact that you reported it to police after becoming involved in a custody dispute doesn't reflect well on you at all. You are free to bring it up but I doubt it will be of any benefit. It reeks of retaliation.

---

Who said it was done after the fact? And even if it was how would it be retaliation if he was the one who broke the law?

Why has it taken you 7 years to report it?

Quote:

---

Quoting Dogmatique

---

Why has it taken you 7 years to report it?

---

I was thinking about my son and now I’m thinking about me. There’s a lot that goes into the story, a lot that I prefer not to discuss, but with that being said after everything that has happened and everything that I have been through, especially with his father, I looked up the legality and was still in my legal right to press charges.

Isn't the SOL on statutory rape in CA 3 years (PC 261.5(c))? I recognize that is is for the filing of felony charges but I can't find anything on the SOL for misdemeanor charges. Since this is 7 years and 9 months old I suspect this will go nowhere.

Quote:

---

Quoting LegalWriter

---

The fact that you reported it to police after becoming involved in a custody dispute doesn't reflect well on you at all. You are free to bring it up but I doubt it will be of any benefit. It reeks of retaliation.

---

I agree. I also seriously doubt the DA will file charges.

Quote:

---

Quoting cjameson1015

---

I was thinking about my son and now I’m thinking about me. There’s a lot that goes into the story, a lot that I prefer not to discuss, but with that being said after everything that has happened and everything that I have been through, especially with his father, I looked up the legality and was still in my legal right to press charges.

---

The statute of limitations has long passed on PC 261.5 (stat. rape) - even as a felony. Your complaint about this will be seen for what it is - a clear and bogus attempt to cast the father as unfit.

So, statutory rape is NOT on the table. If there is something else, a prosecutor will ask why it took you 7 years or more to report it?
Your timing will play against you as the defense will cast your complaint as a blatant attempt to either coerce the father into giving in to your demands, or to play on the sympathy of the court with regards to custody.

Quote:

---

Quoting cdwjava

---

Your timing will play against you as the defense will cast your complaint as a blatant attempt to either coerce the father into giving in to your demands, or to play on the sympathy of the court with regards to custody.

---

That’s not automatically the case. A lot depends on how it is presented. The California statute that defines the best interest of the child standard expressly directs the court to consider any history of abuse committed by one parent against the other, so the fact that it occurred 7 years ago is not a limiting factor here. And of course the time to raise the issue is when custody is before the court; that is when it is relevant to the custody matter. So I disagree that it will definitely come across as you have portrayed it. There are ways to present it that do not give that impression. That being said, as I stated before, I don’t see it as likely that it will be a huge help to her. Evidence concerning more recent events between the father, mother, and child are going to be more significant I think.

I was referring specifically to the criminal aspect, though I worked for many years in juvenile and heard this sort of claim raised with some frequency in Family Court and found that unless the allegations included forcible rape, molestation, or DV they tended to be effectively dismissed by the court. I do agree that the presentation matters, but allegations of physical and sexual abuse in contested custody and visitation cases was about as predictable as the sun rising. Absent compelling evidence to show malfeasance, I just don't see a court giving a sudden and loooong delayed claim any serious credence.

Quote:

---

Quoting cjameson1015

---

That’s the problem is that they never have as it is a different legal issue. He is 30, I am 25 and our son is 7.



I don’t expect it to win the case for me, I am just curious as to whether or not to bring it up to the judge, and how if I do. I know that the DA files charges however with the situation at hand I do have a say in what happens in the next few steps.

---

So he was 23, and you were 17 or 18 when you got pregnant? I can't see any DA wanting to pursue this, even if the SOL hadn't run.

I was 17 when I gave birth to our son

Quote:

---

Quoting cjameson1015

---

I was 17 when I gave birth to our son

---

When you said you recently "pressed charges" against the father of your child for statutory rape, what exactly did you mean? Since an individual cannot "press charges" it's not like he was arrested or is pending an arrest warrant, especially since the statute of limitations has long passed. Do you mean that you called the police and made a report? Did they actually TAKE a report? If they did, you are indeed fortunate that your local police have little else to do but to take reports for non-crimes and at this point it would for informational purposes only and will go absolutely nowhere.

So, perhaps you can clarify what it was you actually did, and what you hope will come of that report.

Quote:

---

Quoting OKisNotOK

---

OP, If you dated this person knowing the age difference, you showed poor judgment. It is doubtful that you were an unwilling participant.

---

FYI, unlawful sexual intercourse (aka "statutory rape") is, by definition, consensual. What it involves is a party under the age of 18. Regardless of her willingness, a crime was committed (7 or more years ago).

Quote:

---

Quoting cdwjava

---

FYI, unlawful sexual intercourse (aka "statutory rape") is, by definition, consensual. What it involves is a party under the age of 18. Regardless of her willingness, a crime was committed (7 or more years ago).

---

I understand what you are getting at, but actually statutory rape is, by definition, not consensual. The whole point of it is that the underage person lacks the ability to give consent. What you mean is that the underage person had no objection to the sexual encounter, i.e. it was not forced or coerced. Had it been forced or coerced a more serious sexual assault or rape charge would apply.

Well, by consensual, you're right, I am referring to the fact that the act occurred without coercion, force, or fear, and was engaged in voluntarily and willingly. By definition, that would appear to be consensual. The fact that it is unlawful per statute, not withstanding. The term "consent" is also included in the jury instructions such that the minor's "consent" is not a defense to the crime. It may be splitting hairs, but, having sat through literally many dozens of criminal trials involving PC 261.5 as the investigating officer, I can tell you that the term "consent" is batted about quite often without specific challenge - usually in an effort to try and sway a jury that it is not "rape" (as the DA often seeks to portray it).

The point in my reference above is that it is an offense for which the SoL starts at the time of occurrence (with few exceptions) and it is not a crime that falls into the same category as more serious sex offenses in CA.

Quote:

---

Quoting cdwjava

---

The point in my reference above is that it is an offense for which the SoL starts at the time of occurrence (with few exceptions) and it is not a crime that falls into the same category as more serious sex offenses in CA.

---

Exactly, which is why I said I knew what you were going for. ;) The word “consent” gets used more loosely by the general public than the law does in this instance, and I recognize that. It happens with a lot of legal terms. (I can't tell you how many times I have heard nonlawyers misuse the term “hearsay.”) For that reason, lawyers in arguments to juries use the word “consent” much like the public does, which makes sense when trying to persuade them. But I like to try to educate those that come here and read these posts so that they might understand the legal side of it a bit better. It might help them understand it when they then run across it again later.