Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
By Mark Hardin
The law clearly states what can happen to parents convicted of one of the felonies listed in ASFA and CAPTA, but what about their spouses or partners? If the other parent has been found guilty as an accessory to one of the listed felonies, he or she is subject to the same civil consequences as the parent who actually physically inflicted the harm to the child. In such cases, both parents can lose custody of the child and siblings and have their parental rights terminated.
Must non-abusive parents divorce or leave the abusive parent in order to maintain their rights to the child? To retain custody, a non-abusive parent probably must keep the child and siblings away from the other parent, and also convince the family court that this will continue in the future. But if the court finds that the non-abusive parent "failed to protect" the child and is likely to continue to leave the child or a sibling vulnerable to future abuse, it will probably order the child removed to foster care. In some states, failure to protect a child from death or assault with grave bodily injury can even result in immediate termination of parental rights to the child and its siblings.
In most cases, when a non-abusing parent does not immediately leave the other parent, the court will order the child into foster care without immediately proceeding to terminate parental rights. Instead, the court usually will instruct the public child protection agency to try to work with the non-abusing parent. Later, if the non-abusing parent persists in living with the abuser or reunites with the abuser once he/she is released from prison, the non-abusing parent will in all likelihood face eventual termination of parental rights.
For the minority of cases in which the non-abusing parent is married to the abuser, divorce is not necessarily required. Generally, however, the non-abusing parent must leave the abuser and demonstrate that he/she will protect their children. Among other things, this means obtaining and enforcing protective court orders when needed to keep the abuser away from the children.