Custody question -- 1912/13 California

If they were unmarried, how would he prove he was the father? That's pretty much how it was proven most times. Another question to be sure of is whether or not a child who was not the product of marriage could inherit regardless of custody issues. My suggestion for something this particular in legal history is to call a law school in california and ask to speak to a family law professor. He or she would be more likely to know the history of family law in california.

PS: It was easy to disappear back then. If she has no one and is alone, why wouldn't she simply flee with the baby and start over elsewhere?

I would think that it is a plausible threat.

Wether or not the baby is weaned may be taken into consideration, but there were bottles and wet nurses were still for hire in that time period.

I agree with SoccerMom on contacting a family law professor.

Leva said:

Well, she's going to accuse him of rape before a judge in the process of trying to get her hands on her inheritance, so they'll turn it around on her.

She has a sizable inheritance -- a large farm -- locked up in a trust. She can't get her hands on it until she marries. Her late father left her the land, but figured a woman couldn't run a farm and deal with the hands (it's a partly a cotton and vegetable/melon farm, so it'd be labor intensive), so he put it in a trust.

The boy is the son of the trustee. The father wants his son (the rapist) to marry her; failing that, he wants her declared unfit* and custody of the baby given to his son. He's a fairly influential, and very unethical, man. He figures that once his son has custody of the baby (eliminating the "she might disappear with the kid and pop up after she's found a husband" problem) they'll make her disappear.

*Unfit = they're accusing her of making a living as a prostitute and being mentally ill. With false testimony from a vindictive neighbor. She's been ordered not to leave town, and she's given her word she won't -- and she keeps her promises. (And she has a few good friends who will disappear the baby if need be, once he's born. She promised she would stick around -- not that she wouldn't hand the baby to friends to prevent him from ending up in his father's custody.)

Note: The lawsuit won't get very far; she ends up finding a husband, and her so-called pimp is actually a very wealthy man (and purely a platonic friend) living incognito, who sics his solicitors on the two of them.

What I want to know is if it's actually a plausible threat, or if a father trying for custody of a newborn baby who isn't even weaned yet would get them laughed out of court.

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I think if they were making an argument from mental illness, there might well be a chance. I'm not sure if a father had any legal right to a baby born outside marriage, but if she's claiming he's the father, and he acknowledges it, it would probably change the situation. Particularly if he's offering to marry her "to give the child a name."

Leva said:

She has a sizable inheritance -- a large farm -- locked up in a trust. She can't get her hands on it until she marries. Her late father left her the land, but figured a woman couldn't run a farm and deal with the hands (it's a partly a cotton and vegetable/melon farm, so it'd be labor intensive), so he put it in a trust.

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While you're calling some CA law professor about family law, call one about estates and trusts law. I don't know if what you're describing was legally possible back then. Specifically, I would question whether (1) a testator could make marriage a condition of inheritance, and (2) whether the kind of trust you're describing existed (legally speaking) way back then. You may also want to email someone at this blog, for both questions:
http://legalhistoryblog.blogspot.com/2007/09/langbein-on-why-did-trust-law-become.html

Leva said:

The boy is the son of the trustee. The father wants his son (the rapist) to marry her; failing that, he wants her declared unfit* ...
*Unfit = they're accusing her of making a living as a prostitute

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If they're accusing her of being a prostitute, how on EARTH could they POSSIBLY argue that that child is his? There would be no way for them to know. No basis for them to believe it's his, and no way for them to prove it was once it's born.

Leva said:

What I want to know is if it's actually a plausible threat, or if a father trying for custody of a newborn baby who isn't even weaned yet would get them laughed out of court.

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The problem's not that the baby is an unweaned infant. The problem is that I don't see any way the guy could argue that he IS the father. They're not married, so he doesn't get the legal presumption that the husband is the child's father. And he himself is accusing her of sleeping with lots of men--so there's really no argument he could make that could persuade a court that he is the father. Even if he doesn't accuse her of prostitution, if she is willing to say she slept with anyone other than him it would be quite difficult for him to have any basis for arguing that it's his kid. And generally speaking, if he can't show that he is the father, then he has no basis to argue for custody at all.

And I also doubt that a court back then would've taken a "suckling babe" from its mother. He'd have a better chance if the child were older. But again, he'd still have to provide convincing evidence that he was the father--which he could not do if he also accused her of being a prostitute.

Leva said:

(And she has a few good friends who will disappear the baby if need be, once he's born. She promised she would stick around -- not that she wouldn't hand the baby to friends to prevent him from ending up in his father's custody.)

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How would the baby live if she and her friends did that? I mean literally--who would nurse it?

I also wonder what the point is of her accusing him of rape. I mean, why would a woman in 1912-13 accuse an influential local man of rape, particularly one who is engaging in such bizarre machinations? The chances of putting him in jail back then were probably quite low--in fact the chances of even getting to trial were probably quite low; surely an influential man would at least try, perhaps successfully, to influence the prosecutor to drop the charges. So I would wonder what her purpose was, particularly if she knew before she reported the crime that he wanted the baby (did she know?).

Ideagirl is correct on the question of the trust. It is highly unlikely that marriage could be a legal requirement for gaining control of the trust. I know that it was not a legal condition for wills. Still, I see it in books all the time (although I cringe knowing that it is wrong).

A law professor (as opposed to just a practitioner) could likely walk you through the legalities of your scenario. But make sure you have the time, because they like to talk.

The bottom line, though, is that there is no way the man can prove, objectively, that he is the father. Remember that there was no DNA testing in those days.

To make your story work, the family will have to trick her into making a legal acknowledgment that he is the father--no court would assume it or take his word for it.

Basically what's being described here is a version of a spend-thrift trust. I don't see any problem with her father setting up as a condition of the trust terminating that she gets married. Her father is basically saying she can't be trusted with money, and that her husband would be. (Depending upon the laws of that period, there's a good possibility that upon marriage the husband would have control of her money regardless of anything else.) Women in California were only granted the vote in 1911.

I think you're going at this the hard way and also short changing the story. Have the boy's father bribe or threaten the judge and have that be the leverage. Gets you out of some of the legal issues and makes the boy's father much more sinister.

Best of luck,

Jim Clark-Dawe

Leva said:

I can't, for the life of me, find the answer to this online.
Time's 1912-1913 California.

Pregnant, unmarried woman. She was raped, but the authorities don't want to believe it. The father (for nefarious inheritance reasons) wants custody of the baby. She wants to keep the baby -- she's alone in the world, and has no other living family.

Could he plausibly challenge her in the courts for custody of the infant?

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Not at that time ... the custody of a bastard was with the mother. He could offer to adopt but that's it.

And for "nefarious inheritance reasons" the inheritance laws of the time required that heirs be born in legal matrimony, or be specifically named in a will. He can't show up with random baby unless he has adoption papers, and even the will might specify "heirs of the body".

jclarkdawe said:

Basically what's being described here is a version of a spend-thrift trust. I don't see any problem with her father setting up as a condition of the trust terminating that she gets married. Her father is basically saying ...

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Are you a lawyer? I am, and though estates and trusts is not my practice, based on the fact that a will can't make marriage a condition of inheritance, I see a potential problem in a trust that tries to do so. Which is why I suggested contacting a law professor.she can't be trusted with money, and that her husband would be.

jclarkdawe said:

(Depending upon the laws of that period, there's a good possibility that upon marriage the husband would have control of her money regardless of anything else.)

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Coverture laws (which is what you're talking about) were gone by the last quarter of the 19th century, if I recall correctly.

A spendthrift trust is a viable option, except that I'm not convinced terminating on marriage was a legal option. It usually terminated on a specific age. Yes, Coverture laws were gone in California by that time. Property belonging to her before the marriage remained her separate property.

But it's your story. As far as the paternity issue, simply have bad guy bribe the judge. The way for her to get past the corrupt judge is to finally convince an attorney to help her and to appeal to a higher court, perhaps for a writ of mandamus if he is bold enough to do something blatantly contrary to the law or to refuse to act on her behalf when required to do so.

Note: I think California calls them mandates instead of mandamus. YMMV.

jclarkdawe, ideagirl, and Soccer Mom are all lawyers, and all have slightly different takes on the situation. Which, I suppose, is why we have such a flourishing legal system!

That said, I (who am not a lawyer) think you've got hold of the wrong end of the stick here on the couverture doctrines, Jim. They were gone from the US long before women had the vote. And although spendthrift trusts could hang on whether inheritors were married, or had children, they couldn't legally specify individuals to whom the inheritors should be married.

ideagirl said:

Are you a lawyer? I am, and though estates and trusts is not my practice, based on the fact that a will can't make marriage a condition of inheritance, I see a potential problem in a trust that tries to do so. Which is why I suggested contacting a law professor.she can't be trusted with money, and that her husband would be. I am an attorney and have written a spendthrift trust that despite an attempt of the beneficiary, has been upheld. For the trust to terminate, the beneficiary needs to (1) remain drug free, (2) maintain three years steady employment, (3) maintain a residence for five years, and (4) not be arrested. Probate court determined the trust's conditions were reasonable and not unduly harsh to the beneficiary. (Who has yet to meet the conditions. He does recieve an income from the trust.)

One of the questions with a spendthrift trust is whether the condition is reasonable. This is done by looking at both the beneficiary and social standards. A trust that imposed a condition that the beneficiary not gamble would be reasonable, a trust that imposed a condition that the beneficiary not have children would not be.

Here the fact that woman nationwide had not received the right to vote, were subject to a variety of protective statutes, and society's attitude towards women would seem to imply that a woman would not be able to act responsibly with money would need a husband to protect her. Especially if it is documented that she's not able to manage her money or life. Combined, I think a lot of judges (essentially conservative individuals) would be inclined to find a trust with this condition not to be unreasonable.

Won't be able to specify to whom she had to get married (unreasonable condition), but when the goal of most women of that period was to marry (or be an old maid), how is the condition unreasonable? It probably would not have been viewed as much different than a spendthrift trust that required the beneficiary to get an education.

In the present time, I doubt you'd be able to make a trust provision that was contingent on marrriage.



Coverture laws (which is what you're talking about) were gone by the last quarter of the 19th century, if I recall correctly. That's the problem with not checking. However, remember that the older men (i.e., judges) would have grown up with coverture, so they would probably have been more receptive of the idea than we are now.

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I'd still bribe the judge. So much easier.

Best of luck,

Jim Clark-Dawe