IS A 17 YEAR OLD RAPE ALLEGATION RELEVANT IN A  CUSTODY CASE INVOLVING A 16 YEAR OLD CHILD?

It is the epitome of the ugly custody case; the kind that judges will confide to lawyers makes them lose sleep at night. It is also the kind of case that makes best interests of children collide with long established precedents and what we all like to call “principles” and “values.”

            The child who is the subject of the custody battled is about to be 16 years of age. Undoubtedly, like almost all 16 year old’s she is toggling between love or at least respect for her parents while searching for her own identity. That’s true of almost any case involving a child who is in high school. But then our facts in Barnes v. Abelseth become profoundly ugly. When the 16 year old was conceived in 2006 her father was 30. Her mother was her age, which is to say 16. To avoid her own embarrassment or perhaps a statutory rape charge against the child’s father, mother named another man on the birth certificate. It would seem from the published reports that Mr. Barnes did not know he was a father of this child until 2010. A 2011 paternity test showed that Barnes was, in fact, the father, and a year later, Ms. Abelseth sought to secure support for the child from Mr. Barnes. As is also common, Mr. Barnes response was to bring claims for custodial rights. The conflict escalates such that by 2015 Ms. Abelseth informs local police that her child by Mr. Barnes was the product of rape. The battles continued but, in the meantime, this Spring, the court awarded custody of the child to father. Realize that local officials have acknowledged that while Abelseth came to them with the rape allegations in 2015, they did not formally investigate the claims until 2021. What the reader will quickly grasp is that while “consent” is a difficult aspect of any rape charge, when the person alleged to have “consented” is still a minor, the “child cannot legally consent.” So, all that was needed in 2015 to investigate were three sets of birth certificates; mother, dad and child. Those records would establish a prima facie case of statutory rape in Louisiana and almost any other jurisdiction.

            While the current custody case is being litigated Father denies the charge of common law rape and the district attorney has not yet filed charges of any kind according to press reports. Meanwhile, a judge is presiding over a case where Mother is 32; Father is 46 and the child in controversy is just about the same age as her mother when she was conceived. The child has been living primarily with her father, the child is also painfully aware that her father had sex with her mother when the kid was her mother’s age and that she is the product of that union, whether consensual or not. If you are 16, the “ick” factor associated with all of this is well beyond 100% no matter how you get along with either of your parents on a daily basis. Faced with this, the court placed the child with third parties and temporarily denied Father any visits while limiting Mother to once a month visits while she took parenting classes. You can watch Mother and her attorney appear on FoxNews to plead her case and ask for money. Mother professes that there was 50/50 custody since 2010-11 and in 2016 father secured full custody.

            So now stack on these facts . According to mother in December 2005 she was at a bar and highly intoxicated when father offered her a ride home but then took her to his home and allegedly raped her (her statement does not distinguish statutory from common law rape). Mother’s statement professes that father knew he was the father but did nothing until 2010-11 when he secured shared (50/50) physical custody. It was not until July 2015 that Mother filed a statement with police stating these facts to the county sheriff. You can read the statement at:

            A Fox News host, Isiah Carey, plays right along with Mother and her lawyer. No real searing questions about how the rape went unreported for a decade or how the police report appears to have coincided with father getting primary custody and an award of child support. The journalist’s ire is directed at the fact that the “rapist” is getting child support, ignoring the fact that the entire premise of child support is to support children and not alleged criminals. Mother and her attorney claim that they never “heard” in the custody proceeding. They don’t know why criminal charges were not brought in the seven years since mother filed her criminal report. It appears that under Louisiana law Mother was within the 10 year statute of limitations when she filed her complaint with the county sheriff but if no charges were brought within the next two years a statute of limitations may apply and criminal charges would be barred. Today we are 16 years post crime and 14 years after the victim became an adult. In a custody proceeding pending today mother wants to allege and prove that she was raped in 2005 even though the charges don’t appear to be viable in criminal court. Meanwhile, if you are the judge you have an adolescent child before you who can listen to her mother profess on television that she is a product of a rape by the man she knows as “dad” who has been your shared physical custodian for a decade and your primary custodian for a year or more. You are living with relatives or in foster care while a judge tries to sort out whether your parents sex in 2005 was consensual, whether that matters if your mother was a minor at the time and whether this should have relevance when your mother did not report the crime for a decade.

            They say being a judge is not easy. True. But try being the child caught in the middle of this thoroughly adult conflict at a time when you are just beginning to feel and act like an adult yourself.