Editor’s note: Randy Kessler is the founding partner of the Atlanta firm KS Family Law. As a divorce attorney, he has represented high-profile clients for more than 25 years and is the author of “Divorce: Protect Yourself, Your Kids, and Your Future.” He is on Twitter.
Does Ariel Castro have a shot at visitation with or access to the daughter he molested? No. Are there legal maneuvers and tactics he could try? Yes. Is there a chance they could succeed? No.
After sentencing Castro to life plus 1,000 years in prison for kidnapping, holding captive and raping three women, Judge Michael Russo denied Castro any access to his victims, including the daughter he conceived with one of them, Amanda Berry. Castro then asked if he could file for parental rights, to which the judge responded, “A person can file — whether they’re going to be successful is a different matter.”
Castro is by all accounts a monster and monsters do not get to exercise "parental rights." While some may slip through the cracks, this one will not.
So what legal maneuvers or tactics could Castro try? He could seek to establish visitation rights. He could seek custody. He could seek telephone access. But fortunately for his daughter, when it comes to child custody or visitation, the legal standard is one of the simplest that exists in the law: Whatever is in the best interests of the child. In other words, in order for Castro to be successful in any such action, he must demonstrate that gaining access to his daughter is in her, not his, best interests.
And if he were to file such a case, surely the mother or a guardian on behalf of the child would file a petition to terminate his legal rights to the child. Given what has been reported, such a petition would almost certainly be granted.
The standard for the burden of proof in civil cases, such as custody or visitation, is less than criminal cases. So in a civil action, it should be easy to prove Castro has harmed his child simply by presenting his guilty plea from his criminal case. And even where there is a higher standard, such as in cases to terminate parental rights, the fact that he pleaded guilty to harming his daughter is conclusive. I cannot conceive of a judge ignoring that and thinking that such an admission is not dispositive of the issue, however raised, of his right to see, be with or have access to his daughter. It just won't happen.
But for the sake of the argument, if Castro really does try to initiate legal action to see his daughter, I cannot imagine it would get far. First, he would have to find a lawyer willing to handle that. I know people say lawyers will take any case, but it’s just not true. Yes, a lawyer may accept the case, but it won’t be easy to find such a lawyer — at least I hope it won’t.
Next, that lawyer would have to file a case asking not only for visitation, but for the court to order someone, presumably the mother of the child, to bring the child to jail to see him. In some cases, such a requirement might be warranted. But in this case, it seems there are many reasons why such relief would not be granted. Let’s go back to the “best interests of the child.” Castro would need to convince the judge that it is in the child’s best interests to see and visit with him. Yes, we as a society place a high value on natural parents having relationships with their children, but in this case it seems Castro may have forfeited that right.
And even if not, the burden of showing how such a meeting is in the child’s best interests seems incredible. Not only is it likely not in the child’s best interests, it could harm her further. Such a process could last months or longer, until the child or the mother’s lawyer brings a request to simply dismiss Castro’s claims, and that should be the end of it.
So, will Castro ever see his daughter again? Only if and when she decides it should happen. She may want to have a conversation with him or she may need to see him 10 years from now for all sorts of cathartic, therapeutic reasons. We can only imagine what she may want to tell him. She may want to look at him or ask him questions. But that is and should be her choice.
When she is an adult, or mature enough to make those decisions, she will have the right to do so. But that is not something for which a lawsuit or lawyers are needed. That will be a simple request by his daughter, and it will surely be with therapeutic guidance or with help from those she trusts to guide her as she moves forward with her life and tries — we all hope successfully — to put those horrible memories behind her.
In other words, in Castro’s criminal case, it is as if he has been proven harmful to his daughter beyond a reasonable doubt.