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McGeorge Law Review

Abstract

California Civil Code Sections 220 and 224 give the mother of an illegitimate child total right to custody and control over that child and no right to custody and control to the father of such child. Furthermore, if there is some reason for the mother to relinquish her custody and control of the illegitimate child, the father is still given no preference over third parties as to custody and control. In this comment the author examines the development of the common law behind the California statutes which gave the mother preference as to custody, discusses the policies behind the specific California rules concerning the custody of illegitimate children, suggests that in our modern society the present rules serve no valid policy, compares the rules concerning illegitimate children with those concerning legitimate children and finds no rational reason for difference in policy as to custody between the two types of children, examines the constitutionality of the California rules in light of the due process and equal protection clauses as well as the proposed equal rights amendment, and concludes that a law which gives no right to custody and control of the illegitimate child to the natural father of that child should not survive either policy considerations or constitutional attack.

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