How does being a sex offender impact your parental rights? When you are convicted, or plea guilty to a sex offense, you are not allowed to have contact with anyone under the age of 18, this includes your own children. There have been some recent cases that preserve your parental right to have a relationship with your child despite your sex offender status. When we get this kind of request, we file what is called a Motion to Preserve a Defendant’s Parental Rights. This motion references the recent case law that says in most cases, it is in the child and parents best interest to have a relationship with their biological children.
Preserve Parental Rights of a Defendant
One of the most recent cases that work to preserve a defendant’s parental rights is United States v. Burnes, 775 F. 3d 1211, 1233 (10th Cir. 2014) United States v. Burnes states that a parent has a fundamental liberty interest in maintaining a familial relationship with a child. It also states that if there is going to be a restriction on this right, it must be justified by a compelling state interest and narrowly tailored. Id. The court must make two findings before imposing any kind of restriction:
- The condition must be reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, and
- The condition must involve no greater deprivation of liberty than is reasonably necessary.
Now, what does this mean? The first requirements means that it has to be a relevant request to not have visitation with the minor children. The court can’t limit visitation and contact with a child for a reason that is not relevant to the case, the circumstance, and the defendant. For example, the court may restrict parenting times of the parent if there is a history of violence or abuse between the parent or child. A court would not be able to restrict parenting times because the parent has a previous drinking and driving conviction. One is relevant to the relationship and circumstance of the parent and child and the other does not. The second requirement means that if there is a condition, it can’t overly deprive the individual of freedom unless it is necessary. For example, telephone and video chat visitation may be the only communication allowed if the offender was convicted of a crime against children but not their own biological children.
There are other restrictions that the court must find if they are going to impose a no-contact restriction on the parental rights of the offender.
The condition of no contact with the minor children is not related to the circumstances of the offense, history or characteristics of the defendant. The condition of no contact deprives the defendant of this right to have access to their children and it is surely not reasonable under these circumstances.
Another recent case that establishes a defendants parental rights is United States v. Myers, 426 F.3d 117,123-24 (2d Cir. 2005) The court held in this case that before a special condition limiting contact between Meyers (the defendant in this case) and his son could be put into place, the lower court must first decide:
- What the goal of the condition is;
- If the goal is to protect the defendant’s own child, whether an adequate record can be developed to support it;
- Whatever the goal of the condition, whether the defendant has any constitutionally protected right to a relationship with his child; and
- What terms of the condition are necessary and not a greater deprivation of any identified liberty interests than reasonable to achieve the sentencing goal.
United States v. Meyers establishes that a sex offender may not be deprived of contact with their children, absent an individualized showing that the deprivation is narrowly tailored to meet the legitimate goals of advancing rehabilitation or protecting the child. It would be the job of your attorney to show that not allowing the familial relationship is more damaging than putting a condition on the relationship. Now, you must understand that this is still up to the discretion of the judge. If the judge feels we have not proved our burden or that the situation does meet the level of one of the above conditions than they are well within their right to impose a condition on the relationship and visitation between you and your kids. The court is going to have to undergo a balancing act to make sure it is appropriate for you and your sentence as well as for the child and their development and growth.
For more information about this topic visit some of the links below or contact our office to speak with Mr. Bresee in depth.