Mothers of minor children engage in sexual conduct with men to whom they are not married. That is no longer a shocking truth. Nonetheless, those mothers continue to live with a Damocles sword hanging over their heads. Their sexual conduct can still cause them to lose their children, even in these supposedly liberated times in the state of California. This Article surveys the cases in which the most commonly used ambiguous statutes together with secure judicial discretion have been brought to bear on custodial mothers who either by choice or by economic necessity do not live conventional middleclass lives. The survey shows that, in general, poor women stand to lose more than middle-class women, but in some respects it is more difficult for the poor to lose. Fourteenth amendment due process protections inhibit the authorities who seek total, irrevocable termination of parental rights; discretion aids the vindictive, monied ex-husband who seeks only transfer of custody, which gets managed far more simply on the premise that a later modification will always be available if another transfer becomes appropriate.
The Nonmarital Sexual Conduct of Custodial Mothers: A Study of California's Precarious Parental Rights, 12 Golden Gate U. L. Rev.