The objective of California family court in custody cases is always to rule in the best interests of the child. Making decisions on child custody is a weighty and complex matter, with much consideration given to factors including physical custody, legal custody, and parenting time schedules. But when one parent is a registered sex offender, the usual methods of deciding on matters of child custody are no longer relevant. Instead, the courts take on a presumption of “significant risk” to the child.

The parent who is a registered sex offender or has a sex crime conviction against a minor no longer has a right to custody and/or unsupervised visitation with their child but must still pay child support. Under the presumption of risk, a parent who is a sex offender must prove to the court that they are not a danger to the child.

What if the Sex Crime Wasn’t Committed Against a Child?

Regardless of whether or not the crime was against a child, a registered sex offender must prove to the court that they are not a risk to the child. In a criminal court, people are innocent until proven guilty, but by becoming a registered sex offender, they’ve already been proven guilty or admitted to guilt. In a child custody case, the offender bears the task of proving to the court that they do not pose a danger to the child.

While the state’s automatic presumption of danger to a child by a parent who is a registered sex offender addresses the court’s duty to make rulings in the best interests of the child, it also serves to prevent convicted rapists from seeking custody or visitation with a child who is the product of rape—a rare but not unheard of action.

Understanding Rebuttable Presumption

While the court begins with a presumption that the parent who is a registered sex offender is a risk to a child, the presumption is “rebuttable.” This means the parent can offer a rebut to the court by presenting evidence that they are not a risk and showing that it’s in the child’s best interest to have continued contact with that parent. Essentially, the parent bears the burden of changing the judge’s mind. A judge cannot grant custody or unsupervised visitation to a registered sex offender without first making a determination that the offender is not a risk to the child.

It can be challenging to prove that a child is not at risk, especially if the crime was against a minor. The courts proceed with extreme caution when a child’s safety is involved. If the sex crime is against a minor child, it’s especially challenging to rebut a presumption of risk. In this case, the court is likely to allow only supervised visitation.

Third-Party Sex Offenders and Child Custody

If a parent with custody of minor children begins residing with a registered sex offender or marries a sex offender, the other parent could file a motion to remove the child from that parent’s custody due to the presence of a third-party sex offender. Because courts always act in the child’s best interests, the parent living with a registered offender would have to prove why living with that person is in the child’s best interests. A court might reasonably question the judgment of a parent living with a sex offender, especially if the conviction was for a crime committed against a child.

If you have questions about child custody and registered sex offenders, a Los Angeles child custody attorney can help.

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