Rapist seeking visitation with child he fathered after attack on teen victim

[happyslug]

48. The Clean Hands Doctrine, only applies to issues of Equity, not law

In the Middle Ages, England had two courts (actually more, but these two absorbed the rest), a court of Law and a Court of Equity. The Court of Law is the older of the two and involves criminal actions and any action that can be reduced to a money Judgement and the issue of who owned what land.

Courts of Equity handled any case that could NOT be reduced to a Money Judgement. While it could NOT determined who owned a piece of law, it could order one person to sell his rights to another (i.e. court orders).

While, the Courts of Equity is said never to have crossed the Atlantic (Pennsylvania did have a Court of Equity in the Colonial Period and various states had them afterward), the powers of the Court of Equity was adopted by the Courts of Law, thus in effect they were merged, but the rules of Equity still applied to cases in Equity.

The big problem was child custody had belonged to neither court, but to a third court, the Church Courts, which never did cross the Atlantic. Till about the Civil War the Courts of Law just refused to accept cases of child care unless there was a clear statutory duty to do so (Elizabeth I had passed a law that the Attorney General could bring an action in the nature a criminal action, called the Writ of Bastardy, in cases where a Father had sire a child out side of wedlock. One aspect of this was that the alleged father could buy off the Mother and thus avoid the criminal sanctions. Out of this law came our present support law (Through one of the aspects was the removal of Support from being a criminal actions to a Civil Action).

Thus you have the case where George Washington paid off a woman who claimed he fathered her child out of Wedlock while he was President and putting down the Whiskey Rebellion in the 1790s (in Bedford County PA). On the other hand, the courts tended to rule they had no jurisdiction over child abuse for that had NEVER been an action permitted before a Court of law (The actual case did not mention that it had been a church court matter, but that it had NOT been an action under the Common Law, in a Court of Law. In the Civil war era case, the Society for the Prevention of Crudity to Animals tried to use a law preventing crudity of animals in a case of crudity to a Child. The Court ruled the statute, while it gave the Court of Law the right to hear Crudity to Animals cases, it could NOT be expanded to cover Children. The Court then ruled that it had the Right under the Common Law to hear the case independent of any statute. It is considered the first case where it became criminal to do harm to one's own children. Please note the problem was the US had no church courts, which had handled those cases in England and not only the refusal to set up Church Courts but the Refusal to set up a Family Court to hear such cases had permitted such abuse to occur).

Back to the Clean Hands Doctrine. The problem with the Clean Hand Doctrine is it is an action in a Court of Equity NOT a Court of Law, and the Courts ruled that Child abuse cases, Child support cases and Child Custody cases were Issues of Law not Equity and thus the Clean Hands Doctrine did not apply. Thus the fact that the Father Raped the Mother is NOT a Defense Against him seeing the child UNLESS you can show some other grounds that such visitation would cause "Great Harm" to the child. The Later is the test for Visitation, not the clean hands doctrine.