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Judith Lewis

Abstract

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article explores the legal system’s glorification of the nuclear family, its resistance to shifting away from the two-parent paradigm, and how this resistance creates a stability paradox and perpetuates violence against women and children. The harmful impact that the nuclear family paradigm has on families is further explored by an examination of the statutory constructs and judicial interpretations of termination of parental rights (TPR) and custody statutes in cases where a child is conceived as a result of rape or exposed to ongoing IPV.

Cases are utilized to examine how courts have interpreted parental rights statutes where a child is conceived as a result of rape. Additionally, a hypothetical case is discussed to explore arguments that may be advanced in TPR cases where children are exposed to ongoing IPV. The Article finds that although there are inherent problems in enacting statutes to terminate parental rights in cases involving rape or IPV, legislation is also a necessary tool for survivors. Model legislation is proposed for termination of parental rights in cases where a child is conceived as a result of a sexual offense or when a child is exposed to ongoing IPV.

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