The number of women who have accused Harvey Weinstein of sexual misconduct continues to grow. So far, at least 60 women have come forward with their own stories. It is no surprise that Georgina Chapman, Weinstein’s wife, has begun to reconsider her marriage.
According to many reports, Chapman has started to shop for a divorce lawyer. Weinstein not only faces possible criminal charges and sexual harassment lawsuits, but also a crumbling marriage. Weinstein’s actions, however, do not only affect him. Weinstein and Chapman have two kids who will have to deal with the divorce, as well.
Considering the Best Interests of the Children
When Chapman files for a divorce she will likely request sole physical custody of her children. Parents are generally unwilling to give up their rights as parents. Weinstein will likely contest the petition for sole custody. If Weinstein and Chapman cannot agree on terms for custody of their young children, the court will intervene.
A court will try to determine the custody arrangement that would be in the best interests of the children. A judge will weigh a variety of evidence and testimony offered by each parent. The most important factors in determining what is in a child’s best interest include the child’s:
- Education; and
- General Welfare.
How Allegations of Sexual Assault Could Affect Custody
Weinstein has been accused of serious crimes of sexual assault and rape. This will likely play a large role in the determination of child custody. Even though Weinstein has not been formally charged with a crime, there is a possibility that he could face criminal charges for his actions. Being convicted of a crime does not automatically mean that Weinstein will lose his right to be a father. However, a judge could take the conviction into consideration when determining what custody arrangement is best for the children.
Chapman will likely use the sexual assault, rape, and harassment allegations against Weinstein in the divorce. If she wants sole physical custody of the children, she could emphasize the seriousness of these accusations. The fact that more than 60 women have allegedly been assaulted and/or harassed by Weinstein could indicate that he has a serious problem. Chapman could explain that she believes that Weinstein is not fit to provide a safe and healthy environment for his children. A judge could agree, and determine that awarding custody to Weinstein would not be in the best interests of the children.
The Kids May Get a Say in the Matter
The Weinstein kids may be able to tell the judge which parent they would prefer to live with. In California, children can offer testimony in child custody cases. This is true for child custody hearings that are part of a divorce. Children can testify if they:
- Are at least 14 years old; or
- Demonstrate that they are mature enough to understand the seriousness of the issue at hand.
The children in the Weinstein case are 4 and 7 years old. This means that a judge does not automatically have to let them testify in the case. However, a judge can allow them to go on the record about which parent they would prefer to live with. A judge will have to consider all of the following questions when making this decision.
- Is the child old enough and mature enough to make an informed decision about custody?
- Is the child old enough and mature enough to understand the nature of their testimony?
- Would permitting or denying the opportunity to testify put that child at risk of emotional harm?
- Is the child’s testimony going to be relevant to the decisionmaking process?
- Are there other factors that should be taken into consideration about having the child address the court?
The 4-year-old will probably not be considered to have “sufficient age and capacity” to address the court. The 7-year-old, however, could demonstrate that they understand the custody process. If the 7-year-old really wanted to testify, a judge may allow it. The judge would not have to base his/her decision on the child’s testimony. They could use it as one of many factors for consideration.
Shopping for the Best Divorce Laws
Chapman has not yet chosen a divorce attorney. She has also not formally filed for divorce. This could be because she is shopping around to see which state has the laws that will offer her the best resolution in her divorce. Weinstein and Chapman reportedly have ties to both New York and California. As a result, Chapman can file for a divorce in either of those states.
Each state has slightly different divorce and child custody laws. Chapman may want to know if getting divorced in one state would be better than getting divorced in the other. Speaking with experienced divorce attorneys in each of these states will help her to understand how a divorce would play out in each state. Chapman will likely file for divorce in the state that will give her the best end result.
Berenji & Associates