Note: We have used pseudonyms throughout this story to protect the client’s identity and the identity of her child.
In 2000, when Jennifer was 13 years old, she was raped by an adult family member named Mr. Smith. She didn’t tell anyone about the rape until she realized that she was pregnant from it. Mr. Smith was her step-mother’s nephew.
In 2001, he was charged, tried, and convicted of first degree sexual assault of a child. He was sent to prison and will be there until at least 2016.
But Jennifer’s nightmare was not over, even after Mr. Smith went to prison. She was victimized again. This time, the nightmare was created by several systems – the county’s human services department, the child support enforcement agency, and the civil court – when they did not follow laws that are specifically designed to protect children and people who have been raped. Instead, they pressured Jennifer to establish the child’s paternity so that they could pursue child support. This was illegal – the law protects juveniles from having to make or being forced to make decisions. The law also prohibits the pursuit of paternity for child support purposes when a child is conceived as a result of rape. This pressure to establish paternity was also a waste of resources even as it re-victimized Jennifer; Mr. Smith was in prison and wouldn’t have much income to pay child support anyway. Obtaining the paternity determination was a waste of public resources even as it re-victimized Jennifer.
Jennifer had the baby and has been successfully raising him with her long-term boyfriend. Then, in 2011, Mr. Smith began contacting Jennifer from prison. He began demanding visitation with the child after his release from prison. Mr. Smith’s family also contacted Jennifer at the same time, requesting that she send photographs of the child to Mr. Smith in prison. “No, I kept telling them, he raped me. This is sick,” says Jennifer.
While his release is not likely to occur until 2016, Jennifer was afraid and disheartened. She was afraid that he would snatch the child when he was released and that he would harm her. If he was capable of sexual assault of a child, he wouldn’t think twice about taking the child and harming her, she thought. She was disheartened because she thought the rape was behind her and that she had moved on as best she could. She had decided that it was best to not tell her child about the rape. The child believed that Jennifer’s long-term boyfriend was his father. “I wanted to raise my child right,” says Jennifer.
When she received the letters from Mr. Smith and his family, Jennifer called a program that helps women and children who have been sexually assaulted or have suffered domestic violence to ask for help. Fortunately, that program has a close partnership with Legal Action. It is funded, in part, by a grant from the Victims of Crime Act, commonly known as VOCA. This partnership is designed specifically to help survivors like Jennifer. The program regularly refers victims to Legal Action lawyers when they have civil legal problems that arise subsequent to the violence. Their program staff called Legal Action and asked us to help Jennifer.
At first, Jennifer and the staff from our partner program thought that she may need a restraining order to prevent Mr. Smith from contacting her or may need a termination of Mr. Smith’s parental rights. But, as we began looking closely at her case and doing some research, we felt that an entirely different remedy was needed. It turned out that the county’s departments of human services and child support enforcement had pursued the paternity determination so that Mr. Smith could be ordered to make child support payments. The County made Jennifer, age 14, attest that Mr. Smith was the father. Laws and regulations clearly state that a 14 year-old child cannot do this or be made to do this. They also clearly state that the father of a child conceived from a sexual assault should not be adjudicated for child support purposes. Jennifer made this attestation without being provided a lawyer and without her child being provided a lawyer – another violation of law. Finally, a Family Court Commissioner approved this paternity determination.
The paternity determination was a problem because it was done illegally, but it also seemed to be fueling Mr. Smith’s ability and desire to harass Jennifer and to demand visitation with the child. In addition, it seemed to encourage Mr. Smith’s family to contact Jennifer. His child support payments, while relatively few and in small amounts, had been given to Jennifer’s step-mother (Mr. Smith’s aunt) instead of Jennifer and her child. Since the rape and her child’s birth, Jennifer had been caring for her child and had not been living with the step-mother. Jennifer did not know that these child support payments had been made or had been given to her step-mother. The family seemed to be pushing for these child support payments to continue and to continue to be given to them, even though they were not caring for the child.
Given all this, we believed that a termination of Mr. Smith’s parental rights simply wouldn’t go far enough. His paternity – and the rights that paternity carries – should not have been established in the first place. With Jennifer’s agreement, we decided to ask the court to disestablish Mr. Smith’s paternity determination altogether. By removing his parental determination, we could provide a higher level of protection and relief for Jennifer and her son.
Ours was a relatively rare request to the court. Our research showed that very few litigants ask to re-open paternity cases, especially to disestablish paternity. In addition, we made sure that the child’s best interests were protected by ensuring an independent attorney who was appointed to him for the paternity disestablishment. When the court system tried to make Jennifer pay for this independent attorney, we successfully fought that as well.
The court agreed with our arguments and disestablished the paternity entirely. Actually, it turned out that the “court” was the same commissioner that had approved the paternity in the first place. The removal of paternity provided another avenue of relief for Jennifer because it will allow for Jennifer’s partner to adopt the child, without interference by Mr. Smith or his family, if they choose to do so.
Today, Jennifer is in school, making progress toward an associate’s degree at a technical college and her child is an honor student. In Jennifer's words, “he is doing amazing.” Although the man who raped Jennifer will may soon be released from prison, thanks to Legal Action of Wisconsin, he no longer has any legal claims to Jennifer’s son. “This has been a big chunk off my shoulders,” she says.