Commonwealth Ex Rel. Graham v. Graham

Commonwealth ex Graham v. Graham,

Appellant. Argued January 1951. Before J., . O. . Drew, Stern, Stearns, Jones,.. Bell, Ladner Chidsey, JJ. Albert for

W. appellants. Ramey, Chaplin P. him D. Edward Dan with Arnold, for Chaplin appellee. & Arnold, by Opinion 1951: May Mr. Chidsey, 23, Justice on November 2, 1949, May appellee, Anna Graham, corpus proceedings the instant habeas instituted David Gra- against County, Clearfield Pennsylvania, great- A. paternal James Cowher, father, ham, her Andrew son, to secure grandfather, a decree of She relied years. upon five age Graham, child to her. awarding an Ohio an entered 16, on November below, The thereby per- petition, prayer refusing order pater-, father and with to remain mitting Court reversed The great-grandfather. nal court. appeal We by allowed lower the father and great-grandfather.

David and Anna marriage. after Graham, their on June moved from to Cleveland, Ohio, where the child, was born on December Andrew, , parents separated 1944. in 1945. Anna was employed practical thereafter as a nurse. Because employment and her defective the child vision, cared largely from time to time and reared great-grandfather, with whom he lived while Penn sylvania. proceedings Divorce were instituted in Ohio hearing April the mother. A had on 5, 1949, April and on divorcing decree 8, 1949, was entered parents providing respect to the child: “It is further ordered that the Plaintiff be and is hereby temporary custody awarded the of the said present physical minor child but due to the condition of the it is further ordered plaintiff, that the said paternal grand child continue to be domiciled with the (Inadvertently “grandfather” father.” the order read “great-grandfather”.) rather than re child had County, Pennsylvania, turned to Clearfield with James' April .great-grandfather, A... Cowher, on 1, days hearing: days prior four before the and seven the decree.1 The Ohio court further ordered that the arrangement regards as domicile should for continue a year and a after time the issue of half, which relitigated. might arrangement, and This physical made as the order was because of the indicates, opinion Superior mistakenly in the is stated It entry decree, great- “Following the aforesaid that grandson grandfather returned from the domicile Cleve- Shawville, County, land, Ohio, Clearfield to his own domicile Pennsylvania, taking -him.” This the child with statement is not below, finding finding of the court is in accord with supported amply the- evidence.

condition of the her defective namely, vision, mother, her and remains admission, only own was which, by ten centum of normal. per respect pro to the Pennsylvania

The record with It but not by not clear. ceedings appears, however, that mother first the docket entries, July, 1949, corpus proceedings instituted habeas Clearfield Graham and against David Pennsylvania, County, James to determine A. Cowher child,2 permitting the court a continuance, ordered posting mother take the child two weeks upon his great-grand a return of the child to bond assuring and conditioned father at the end that period, and that Pennsylvania; he from be removed should Anna condition the order, notwithstanding this did re She took the child to Ohio. Cleveland, Graham cancelled leniently turn in due course and the the bond. for habeas petition

The docket entries reveal rule and a issued filed November 2, corpus attorneys and the The court below thereto. pursuant Court, on treated the Novem- hearing before have this on the original hearing peti- second ber at this present hearing All were Novem- tion. parties opinion Court that in the It is indicated County (July) proceeding in Clearfield instituted earlier right the merely to enforce of visitation the mother to enable April child, by ap- granted 1949. This the Ohio decree the by parently a made her counsel at the sec- based on statement is County However, hearing on November 1949. in Clearfield ond questioning of the mother at appears court’s the sec- from the it impression proceeding hearing, that the of the earlier it was ond custody the to the child and have obtain instituted had been County, admittedly sister, to come Clearfield had who the nothing purpose, to Arizona. There was the child in take such sought the mother to that visit the child indicate to record the July. proceeding prior in the earlier any to time at ber. Anna in of the Graham offered evidence copy of a decree and a original copy subsequent divorce of an court dated The lat- decree Ohio October 26,1949. ter to decree exclusive of the child the awarded mother and ordered child to be domiciled the the with and in Arizona. The mother’s sister her blind husband the and the not husband, great-grandfather were child, at present resulted the hearing which Graham received a modifying order, although David letter from his him of advising wife’s attorneys David pendency attorney ap- action. Graham’s peared the Ohio court and ashed for continuance re- request order prepare case, fused court. instant pro- introduced evidence

Appellants and parent with to the fitness each ceeding respect and the environment presently great-grandfather concluded hearing judge child. The surrounding the would that the best interests welfare his father and to live with continuing served an order denying and entered great-grandfather, Court petition. of the mother’s prayer Judge dissenting, President was of opinion, Rhodes credit must be the Ohio given that full faith and (1) of full irrespective 26, 1949, (2) of October decree re- of the child best interests faith and credit, the mother. an award quired full faith and credit contend that Appellants 1 of the Constitution Section IV, of Article clause regards orders inapplicable States the United when for the reason of the Ohio en- held and decrees were were hearings the respective foreign subject tered, undue gave weight the Superior court, n its order is not the result facts, to minor the best interests to nor does promote conducive child. of thé- welfare presented

Consideration issues and review the entire record compel the conclusion that order of the Superior Court be reversed.

Neither of the original authentication Ohio de- cree of nor of the April 8, 1949, decree modifying October 1949, Congress conformed with the laws to' respect judgments decrees of another state in that both lacked the certificate .of hear- required .the ing the attestation of judge the clerk of the court (Act due form June c. 62 Stat. 25, 1948, 28 TT. C. A. It 1788). S. clear, however, objection appellants’ by counsel admission into evi- dence of these decrees was on based their irregularity in this and to effect a respect, complete disposition of this case we will them as consider evidence. properly

If it be assumed that the'Ohio court had jurisdic- tion of the matter subject (status to enter child) the' of April order and that full 8, 1949, faith and be credit must extended must be thereto, recognized the order establishes definitely in Pennsylvania. residence of child The Ohio court not only but directed that the domicile as permitted, as. well residence the. factors controlling While jurisdiction, in.Pennsylvania. the child is domiciled .resident Pennsylvania, the Ohio jurisdiction is without of the person and subject matter. The attempted reservation and the the court provision reconsideration at .the énd of. -.months could eighteen .'not,, be en- therefore, (cid:127) It forced the. Ohio .court'. surrendered any. jurisdicT .and later had, tion it have its.: may decree of Octóbér .To nugatory. .conclude otherwise would reservation permit, control of .the custody:of for:any actual stated time, indeed its: minority,, regardless, throughout, whereabouts :aiid.-domidle.. to::residence ..such as- Certainly, stated .re- cannot of jurisdiction tention have.'éxtratérritorial.efv feet courts of a preclude sister being state, pos- of domicile and from exercising juris- sessed residence, diction.

Jurisdiction of a court in a proceeding involving determined tbe residence ex v. tbe child. Commonwealth rel. 298 Pa. Daven, 416, ex rel. v. 148 A. Commonwealth 160 524; Sage Sage, v. Camp Pa. 28 A. Commonwealth ex rel. 863; 399, A. 2d 150 Pa. Ct. 649 29 Superior 363; Camp, (1942), Dunbar In re: Minor Children A. Rosen Custody 157 103 Pa. Ct. A. Common 342; thal, Superior 27, State wealth ex rel. v. 73 Pa. Ct. 268; Eich, Minn. 252 N. W. rel. v. 190 ex Larson Larson, 489, Conflict of Sections Laws, 329 (1934); Restatement, A does not have 146. court which 117, 145, subject does not have child, as between of custody determine the right matter v. supra; ex rel. Commonwealth parties. Daven, Gilman v. Camp Camp, supra;. ex rel. Commonwealth cert. denied, 2d 372, Fla. 29 So. v. 158 Morgan, Lake Fla. 732; 146 Friendly, v. Dorman 796; 331 U. S. 2d 182 P. 824. 63 Wyo. v. Lake, having jurisdiction of the court Infants wards protection, They are'under care, their person. of. a child, awarding In control. decision in its welfare guided must be. vitally child. The Commonwealth is interests of-the best an boundaries within its with infants concerned all;matters; affecting- them.. Com .party interested v. Society Gard, Children’s Aid 162 monwealth ex rel. A. Pa. .85, 66 affirmed 362 (1948)., 415 Pa. Superior Co. 447; 77 Ala. App. 297, Shapley, v. 16 Burns 300; 2d (Iowa) (1950); W. 2d 41. 60 Crawley, N. v. Helton 47, 27. P. 2d v. Torrance, 95 ; People ex rel. Wagner Colo. P. 2d 444; McMillin, 114 v. Colo. 1038; McMillin 43 ; C. J. S. Infants, Section C. Infants, 6: J. interest,.of;the;, The. 52: statefis: reflected p. Section 5,' in the criterion adopted by onr the con courts, trolling consideration is the welfare in cluding physical, well- intellectual, moral, spiritual being. Commonwealth rel. v. Com Daven, supra; monwealth ex Aid v. rel. Children’s Society supra. Gard,

Residence within this Commonwealth is sufficient of jurisdiction exercise by our courts: Common wealth ex rel. v. ex rel. Commonwealth Daven, supra; Sage Commonwealth ex supra; Camp Sage, rel. v. Camp, Commonwealth ex supra; supra; Eich, re: In Minor Children Dunbar Rosen Custody A. supra. When father returned to thal, on June 1949, more than four months before the 11, Ohio decree of October his made home 26, 1949, with the child in great-grandfather State, whatever have been of may the status it is clear that into domicile. ripened residence of

Examination the instant record with respect of the Ohio reveals courts fundamental factors which do not require courts orders in recognize binding as question presently upon them. child of Ohio The left State on April 1, to resume residence Pennsylvania with The great-grandfather. divorce re proceedings which sulted in the decree to establish the child's purporting domicile in on Pennsylvania were heard April 1949. or a The minor child was not then within resident any State decree court could Ohio, regards parents effective themselves. only rel. Camp Commonwealth ex v. Common Camp, supra; v. Josephine Lembeck Pa. wealth ex rel. 83 Lembeck, v. Gilman 305; Morgan, supra; Reynolds v. ; S. 254 Boor 43 (1891) v. 140 U. Boor, Stockton, In Dorman v. Friendly, supra; N. W. 2d 155 (Iowa); A. v. Lake 161; N. J. 157 Eq. 294, 109 Erving, re J. 889, p. 482; 50 C. Re S., Judgments, Lake, supra; Laws, (c). Section Conflict statement,. of the Ohio court award 1949 decree Tlie April It inconsistent terms. to the mother is custody ing on an between incongruous gulf custody creates on hand and domicile and residence the other. At one made to award tempt a direction in Ohio but there is also specific

mother Pennsylvania. child be domiciled domi the child “continue to be by ordering court, in Penn [great-grandfather]” ciled the paternal fact as al recognized sylvania, pronounced already the child was ready namely, existing, The decree Pennsylvania. and resident domiciliary cannot operate of a court of a state extraterritorially, judicial can exercise jurisdiction by process nor a state or outside its ter property persons otherwise over In re: 714; v. 95 U. S. Pennoyer ritorial limits. Neff, Dunbar A. Minor Children Custody Rosenthal, v. Lembeck Josephine Commonwealth supra; supra. Lembeck, full infirmity is saved

Jurisdictional Thompson See Whitman, faith and credit clause. 327 U. 21 L. Ed. 897; Griffin, Wall. 457, Griffin S. the earlier Ohio order of 556. At best 66 S. Ct. to the mother to give 9th April purporting and to establish child’s jurisdiction one and of doubtful efficacy in another and residence the courts of by as conclusive not recognized need of the court and the con the opinion See Pennsylvania. v. York ex rel. Halvey in New opinions curring The full faith and 67 S. Ct. 903. 330 U. S. Halvey, 610, of the where apply credit clause will rel. York ex In New is doubtful. state the sister Mr. Justice supra, Halvey, Halvey Frankfurter determining “In at 618 said: p. opinion, concurring or fall stand should judgment York the New whether considera of competing two be taken must account of the the presumptive first There is tions. court of. a sister State —-here Florida —to the .render full credit judgment faith and is asked. The other is the of State court —here power New Yoi*k— which has control of actual the child to make provision for the child’s welfare. as both considera Where, here, one yield. juris tions cannot must Since the prevail diction of Florida the the custodial de making cree is York justified exercising New was doubtful, in the interest of the child. North power Williams v. U. S. 89 L. Ed. Carolina, 325 S. 226, 1092, [65 1577, 157 A. L. R. 1366.]”

We of opinion had below of ef power giving binding case without dispose decrees. be concluding, fect Thus the court upon full.hearing low entered properly determine; from a disposition which was for the best evidence, and it our interests the child, and welfare becomes (Act under' P. L. duty July 11, the law to “consider the and §1874) testimony Section PS 1,12 merits either upon make such order case, ap or modification the order reversal, affirmance, See justice belong.” and shall right pealed from, 346 Pa. Edberg, Piper Commonwealth 31 A. 2d 84. undue Court gave appears It life. rural aspects some importance weight impressed lack unduly We believe was home great- in the facilities modern bathroom the care thought grandfather, old year great- to the 78 left principally neighbors representatives, welfare Child grandfather. Cowher, A. of James great-grandfather, all in Shawville, church minister Pennsylvania, condition of the great- the neat concerning testified and his environment, the favorable home, grandfather’s While community. in the standing reputation good it is stressed, the great-grandfather fitness relationship clear .the child’s father is part The father takes in the normal. care of the child, employed is lives the same and and able to home, maintain the home. father’s mother The who near- lives laundry, helps prepare often does child’s frequently. and him sees The child a rela- meals, has tively ample yard .comfortable and clean home. There is space playthings provided. and abundant play, spiritual guidance great-grand- He from his receives Sunday regularly. father and school All of attends established to the satisfaction of the Clear- County upon field consideration of all which, child to remain father ordered the with its facts, ' great-grandfather. attempted ex- of the to award order Custody and to con- of the child to the mother clusive in Arizona the child’s domicile with the mother’s stitute husband. The instant record does sister her blind any tends to establish the not contain evidence which or: aunt and Arizona home of either the fitness may ques- of the mother herself uncle. The fitness light physical handicap, her of her use tioned improper language, attitude harsh toward compelling reason There no to assume child. is daughter (not child leave her the mother would Graham) appellant attachments other David only in Arizona. The indi- her Ohio and live with son unreliability of intention. Her cation her statement is by of the Clear- demonstrated violation has been granted County order her the court’s field kept the child be within on condition weeks, two obligation Pennsylvania. Despite and the the order appellee performance the child to Cleve- took bond, supra. v. Daven, Cf. Commonwealth Ohio. land, presumption that unmindful areWe qualified ordinarily to rear a child of better mother under the circum- years, arewe but satisfied, tender 564 that by this best interests presented case,

stances of the child and will be served his remain- welfare his father and great-grand- with ing familiar and familiar surroundings per- father in he has an at- developed sons for it is apparent whom than to him to be transported rather permit tachment, to an unfamiliar en- strangers Arizona to live with vironment. is

The order of the reversed. Superior Dissenting Opinion Mb. Bell: Justice of a awarding The decision of this Court old to a years great-grand- child four and one-half accord- instead is, aged 78, father, mother, directly contrary all human experience, ing A fortiori of a child. young best and interests welfare on old subsists is this so when great-grandfather child and he share a bedroom and the age assistance no no lights, there is water, a three-room house where care for him. help and no and no woman bathroom; in Pennsylvania settled both wisely It is well is the best interests and in Ohio that star pole v. ex rel. Sage Sage, child: Com. welfare 166 Brown’s Estate, Margaret 28 A. 863; 160 399, Pa. ex rel. v. 298 Pa. A. Com. 1122; Pa. 30 Daven, Pa. v. 346 Piper Edberg, rel. Com. 148 A. 524; v. Aid Society ex rel. Children’s A. 2d Com. 84; 31 ex rel. Self, 2d Com. 66 A. 300; Pa. 85, 362 Gard, Self 2d Com. ex 263; 34 A. Ct. 443, Superior 153 Pa. 459; 76 A. 2d 167 Pa. v. George, George 2d In N. E. 654; App. 178, Tanner, Tanner considering 101. But Supp. 15 Ohio re Griffin, child we very young of a and welfare interests best like a mother’s is no love there remember must not a its place certainly can take nothing love — Human shows experience great-grandfather. nor has neither great-grandfather strength pa- nor the a child of tender years tience qualities give care and the attention and a mother devotion which on her child. showers prac blind* mother of this child is a partially

tical failure to because of her husband’s nurse, who, had to to earn her her their has work support an action for a livelihood. She divorce brought parties where all their child Ohio, lived and indisputable were domiciled. It their court had both parents of child** the child’s cus as well as the to decide right tody. the temporary

The court on awarded April 8, 1949, her ill to mother. Due to of the child the custody the child the court ordered health at that time, “domiciled”) with used the word (it ambiguously live at for which months, his paternal great-grandfather could be question time it directed that the contention The present re-litigated. great-grandfather’s he received under which the court’s said decree, * vision, her leave to enable to was sufficient The mother’s Clearfield, Pennsylvania, Ohio, Cleveland, the travel unaccompanied. miles, by bus, hearing, a of some 250 distance ** Judge opinion of the Court the learned President The “Admittedly, County the states: Pleas Clearfield of Common parents time the action Ohio at the residents of the State of were spent part Admittedly, the child his in was instituted. divorce great- Pennsylvania, in of Ohio with his but was the State time in hearing prior and decree in grandfather months for several parents.” the child evidence shows that The his between divorce April great-grandfather on to live went hearing days the court’s decree 1, 1949, and that before four change, April formally 1949. This could not entered on which, demonstrated, child’s domicile under hereinafter will father’s, law, nor oust the of his was that court. certainly poor boy,, grace comes with invalid, w.as absolutely as we shall is devoid merit. and, see, question Pursuant the court’s cus- decree, tody re-litigated on therein six months viz: later, juris- October 1949. It is obvious the- court’s frequently specifically (as diction retained Pennsylvania), done could not be cases n lostor ousted unless and until another court -lawfully jurisdiction. acquired far so as the mother, respective record still retained their shows, father, n the father and Ohio. Furthermore, great-grandfather hearing regis- notified of the were appeared proceedings tered in swid mail; father careful consideration and after .counsel; court, investigation pertinent on and conditions, of all facts mother the exclusive October 1949 awarded custody- facts, all these the court’s Under the.child. binding and or decree was .and order valid was.entitled everywhere recognition under States .to United full clause. “the faith and ..credit” refused, obey great-grandfather . Nevertheless the mother or to so the court’s order deliver against corpus proceedings bring forced to habeas was the'great-grandfather in later one week arid the father residing. they County, were where í?a., Clearfield binding validity and its ef of the Ohio decree The under the full must be sustained fect since said Constitution, of .faith and credit clause the. hearings jurisdiction mother at both had Yarborough boro .child-: v. and the father and the Yar York ex New ugh, Cf. 181; 54 S. 290 U. S. . 903 See Halvey, 67 S. CU rel. Halvey U. S. 330 v. e DiPasqual ex rel. also, : Com. effect the same to' Superior 2d 265 DiPasquale, 29, 56 A. Pa. Ct. Teitel refused); Teitelbaum v. Com. (allocatur Pa. baum, 4 7. §§32and 1 Laws, of Conflict 50 A. 2d 713 ; Restatement, of applicability the full faith and pro credit vision of the Constitution was raised and principle at least decided adversely to the contention of de in the fendant Court of the United Supreme States In that Yarborough supra. 290 U. S. Yarborough, a case decree of a state obli fixing permanent of a gation divorced father for the and education support of his minor held was under the daughter binding full faith' and credit clause Constitution on the courts another state to which the daughter and divorced had mother removed and in which it was sought to force additional contributions from the father attachment of his local In property. case Mr. Justice delivering opinion Brandéis, said 210-212: “It con Court, (inter page alia), tended that decree is not Georgia binding upon Sadie because she not a formal was- child], party [the process was not served with no suit, guard ian ad litem for her was therein. ... As appointed disposition scope suit embraces-within care minor over: the parents children, minor’s ipso eo over the confers ... support.* for permanent “. the order . . It is contended she was because Sadie alimony binding upon is not entered. at the time not a resident Georgia that n Georgia, Sadie’s' Being minor, n her to be Georgia continued and her domicile father; She was not question: the judgment, until entry of n her domicile. act changing own her -capable by at in North Carolina residence temporary Neither- the-, nor her removal time divorce suit'was. the. begun^ to- South Carolina entry mother with her before domicile. .....the Sadie’s change judgment, effected - ordinarily determined the minor, -status of * -CNAIt&licS.lhOfflglJOlit,:ours,-.;V;r, by place of the but the law of the minor’s residence

the the this is not a case where father’s domicile. Moreover, acquired Georgia scope the the up- by publication upon rests the of service effectiveness Yarborough cross-bill, filed a as on a nonresident. Mrs. acquired the com- as an .... Thus well answer; marriage and, plete as of the status an power finally the extent her to determine incident, support obligation his minor child.” father’s to This present directly, as rules the case well principle, applicable present opinion equally the case, [the minor] capable by her was not own “She case: temporary changing her the act domicile. Neither [Pennsylvania] at time the divorce residence in [great- [completed], her nor her suit was removal entry grandfather] [Pennsylvania] before change judgment, [the minor’s] domicile.” effected a Teitelbaum, 160 Pa. ex rel. Com. Teitelbaum on all fours with . A. 2d is almost Ct present In that case the case. likewise rules Philadelphia. and father residents mother were corpus a habeas the father After year daughter Municipal Court of their three old agreement Philadelphia County, in an accordance with parents, awarded father. Shortly child was sent to brother and thereafter Gallup, father New Mexico. sister-in-law the On petitioned February mother the Munic County Philadelphia ipal for an order on compel have him to the child returned father to parents Philadelphia County. She admitted the had agreed brother and sister-in-law could that father’s subsequently adopt minor there involved. It adopted they appeared minor had al point. though existed on Mu some doubt still nicipal the child no retained longer Court held jurisdic- and was within its hot father’s

569 it tion. The Court and held had reversed jurisdiction and that if had not taken adoption place on the Court consider the case its Municipal must merits and make a decision as to for the best what was of of that interest the child. It course, will noted, order the child had to Mexico under its been sent New had although was still the awarded there, exactly the the custody present to the father. This The in : (p. 289) case. its said opinion on “The of the court attached Septem- ber the writ was issued. At original when 18,1945, minor re- daughter time both of the and their parties in in that county. By pro- sided the order Philadelphia child of the custody father, the ceeding, awarding is con- as this record the domicile the so child, far and the court the continued to be cerned, father The peti- present proceeding. had the jurisdiction of in effect respondent- filed corpus tion for habeas on order made for modification was a petition . child to re- custody awarding the original writ, children are custody of determining lator. Orders subject are always in their nature temporary ex rel. Com. conditions. changed to meet modification A. 524.” 298 Pa. Daven, in child’s domicile, ‘The minor “The rule is that separation parents, or divorce judicial case'of been le- has to whose parent is that And of Laws, Conflict §32. Restatement, gally given’: a proceeding of a court in it is settled is determined involving Camp, ex rel. Camp Com. the child. residence far So ... 29 A. 2d 363. Pa. Superior the domicile discloses, record present of Philadel- county in the relator that of law, The court filed. were petitions present when phia, into -a hearing refusing go therefore, erred determine ¿to whether changed -first ..proceeding, since original facts in this appearing order, legal change have worked the domicile or record, the jurisdiction residence the child ousting if not whether the best interests of the court, and, require order on change made Septem- ber 1945.” great lengths Supreme Court of

the United States has gone applicability sustain of effect the full faith and credit clause to foreign in custody decrees cases is further from New apparent York In supra. 330 U. S. Halvey Halvey, in that case the married and lived to Halveys were in In gether York until 1944. 1944 Mrs. New Halvey went to Florida her old year with six son estab lished her residence there. In 1945 she instituted a suit on Mr. process divorce Florida. Service Hal vey was had publication. Neither he nor attor any ney him the action. representing appeared The day the before Florida decree Mr. was granted, Halvey, without the knowledge or of his approval took wife, their child back The next to New York. the Florida day court entered a decree Mrs. a divorce Halvey granting the awarding permanent her care, custody, control of their child. 'Halvey

Mrs. then habeas brought corpus proceed- in New The ing York. New York court after‘hearing ordered that the custody of the child remain with the but gave the father certain mother, rights of visitation. The Court Supreme United pointed States out that under Florida law the welfare of the child was the chief consideration and it could modify its cus- tody decrees when “altered conditions shown [were] arisen or have since because decree, material facts oh the bearing question of custody and existing unknown, at the time of the but which decree, were .to only and then for the the Court welfare of the child.” The eourt- héld that further New York court did only the Florida could done and there- what have fore faith and credit there was no violation of full clause of the Constitution. these

Under authorities it is clear subject court had matter and parties its aforesaid at the time it entered each April 1949 and that decrees 1949 and October these and credit in decrees to full faith were entitled every changed could state the United States and only changed af- when conditions were shown which change fected for a of the child and called welfare or modification of the Ohio decree. blandly blindly ignores majority opinion

principles laid aforesaid decisions down Supreme respect to of the United States full faith and denies that and credit clause set court in Ohio had because is well “jurisdiction tled in proceeding involving is determined This would not domicile or residence of the child”. deny jurisdiction court, first, or of oust the the parties; jurisdiction and because it had retained orig secondly, of child was the domicile because inally April decree that of father after the and custody had the court that of the mother, whose appeared per thirdly, the father awarded him; custody proceeding. sonally by or So counsel each original proceedings con are far as the Ohio divorce the child were and the mother and the father cerned, actually in Ohio. Under domiciled of and residents agreed or order that the all these facts authorities every binding April of was valid decree 8/1949 said Court awarded the state in Union.' After the clearly custody to. is settled the child the mother, minor, case of divorce in the. domicile, child’s that “the Custody- parent it has been whose . . . legally given’’: ex rel. Teitelbaum v. Com. Teitelbaum,

572 Pa. 160 50 A. 2d 713; Restatement, Conflict of Laws, §32, Yarborough Yarborough, U. S. 202. It the Ohio court follows, therefore, having jurisdiction of both and of the minor parents because his therefore his domicile was with his it had jurisdiction undoubted to make mother, order or decree of October of Clearfield ignored. County

The Camp case Com. Pa. Camp, Superior Ct. cited instead majority, the majority at supporting opinion, impliedly least, In 1942 a father supports opinion. February who awas resident of obtained a writ of habeas Maine, for corpus ten old child. year his child was living with the mother and had they both resided in In the Philadelphia since 1938. part latter of January several for petition weeks before habeas corpus filed, the mother sent York New State to live with relatives. The court held the Municipal Court of County had Philadelphia jurisdiction of subject matter the parties “and Mm sending to live temporarily in child] [the New York under did respondent’s control not effect a change whether removal was purpose the court’s or for defeating some other purpose.”

The error of the lies in majority their failure to realize that the child’s temporarily living Pennsyl- vania does and. effect cannot effect change of domicile, oust the Ohio court. of. The domicile remains with the mother, whom the having indisputable jurisdiction, awarded the court, custody All child. are in authorities accord that a habeas corpus may proceeding brought any (1) court either where child was or domiciled; child may where- the be found. (2) These two jurisdic- - and co-existent and tions aré separate- neither is ex- child filed the pres mother of this elusive. When the father and against corpus proceedings ent habeas it is clear in Clearfield County, great-grandfather had since County of Clearfield the court a non but it is County, said present the child was all authorities contrary to as well sequitur, under its decree Ohio court which, say had of both October April to enter authority had no jurisdiction parents* living temporarily decree because the to hold fallacious and it is County; equally Clearfield effect and had no the Ohio decree extra-territorial clearly As Pennsylvania. could be so ignored by Conflict Laws, correctly Restatement, stated been award of a child has custody “. . . when §147: the decree will ed court to either proper parent, he in other states”. enforced decree of the Ohio the order or

But even when binding is valid —as clause—-its effect faith and credit here under the full It is important nor unchangeable. is neither irrevocable of children fixing to recall that “Orders and always subject in their nature temporary ex rel. meet conditions.” Com. changed modification 148 A. 524. See v. 298 Pa. also 416, 419, Daven, DiPasquale ex rel. DiPasquale, same effect: Com. A. 2d Com. ex Ct. 265; 162 Pa. Superior Pa. Teitelbaum Teitelbaum, (h) 50 C. J. S. 487, Judgments, 50 A. 2d 713; §889 Conflict Laws, (5). Restatement, §147. . in Comment (a)

As is stated §147 so well decree of made by “It the Restatement: [the in another is conclusive a competent state] the time the decree child at the status * in Ohio was still domiciled and each of whom of whom Each hearing appeared or trial. at the

rendered an award cannot be and the merits such or in either in the where rendered re-examined state another . . . while courts other state. Therefore, enforce the decree far as it states will so child at the it determines status time they if have such they may, jurisdiction, change issued, arisen award facts which have upon subsequent ” first decree. In Com. a Pa., court Daren, supra, in North Carolina awarded two young children to a “ home ‘there to remain boarding until the further this . from court.’ . . ‘the Court then stated to orders Bryant any Mrs. reluctance make de [mother] cision a mother from her children and separating hoped of Mrs. the status would be Bryant so changed as the future to enable a different disposition Six months later Bryant case’.” Mrs. surrepti took her children'to tiously where Philadelphia they continued to live. Six months after that, repre of the North Carolina sentative obtained in Philadelphia County writ habeas corpus. The Su of Pennsylvania preme decided that the ease heard on should be its merits and that the decision should be based welfare of the upon children at not time and their present welfare year previous. 421) (pp. 420, The Court said inter in its opin alia, municipal “The error ion: inwas refus testimony to hear as to especially ing changed present conditions and treating adjudication North Carolina as permanently fixing the status of so that could children no changed by other . . Judgments court. . decrees chil concerning are res as to judicata dren never conditions facts . . . Orders arising. subsequently concerning cus are uniformly children treated as tody temporary to meet change and subject conditions. . changing . . far children concerned, situation So is, fit to have varying. parent constantly may be, of changed reason today may, of his children The above unfit tomorrow. become circumstances, within state, the courts does prevent rule considering from may children be, whose-limits for a not call may in the situation a change whether disposition”. new ' in concurring opin- Mr. Justice Frankfurter, S. 330 U. Halvey, ex rel. Halvey ion in New York rec- universally this almost expressed well 610, 617, no “If he said: there were question rule when ognized to for the custody Florida provide as of power to de- manner in Florida of child in the which re- I York loould have to of think New did, cree divorce unless changed what conditions spect decreed, Florida the child called a change affecting welfare decree Florida in care.... a-valid custodial custodial a be aside because New York could not set simply has own view on court, independent consideration, be appropriate.” what would That is custody dicta to the Any contrary by any should be the law! must yield to decisions of Pennsylvania of the United States pertaining Supreme faith which must be given the full and credit a a sister The Ohio decree of court of state. decree is on all binding clearly courts; valid but equally modified or changed by it can clearly but subsequently acquire courts, jurisdiction, if, conditions affecting only “changed if, welfare child call change for a custodial care.” and the The reason for reasonableness of a rule re- a in order to conditions an quiring change change a custody order of court child’s prescribing must be If a different court can make a obvious. different order a without any within week custody change of facts another can still on the conditions, or same facts or decree the same as the order first court or can make a still different order than did, the first or second court one or one or one month did, week, day, after the court’s decree. The prior resultant harm to a as well as to the reputation prestige Courts Justice must be apparent. Under ma- all jority opinion of this this mother (or any Court, aggrieved in any other party has proceeding) to do the child retain he when comes her for a (or week-end thus kidnap child), necessitat- a habeas ing (new) corpus proceeding by great- grandfather another county Pennsylvania, another where different can make state, judge based diametrically opposite award on same facts, circumstances and conditions. In the event of a habeas corpus proceeding another court, case might, a practical matter be heard' likely would, a “friendly” judge, any judge viz: who has different ideas about child or has a welfare, pride who strong in his or an inhibition against community, strangers, or human who because of traits all possess which we may different ideas about children or a raising have different than the or first second approach judge who heard the previous The net result would proceedings. be for disrespect interminable courts and litigation, a lack child of faith be Justice; would but a “shuttlecock”. no by

There made attempt defendants show circumstances conditions change affecting during child’s welfare week between the order of and the order of the Ohio court the court of Clearfield for obvious reason that it would probably County, and consequently without such impossible; have been the Ohio decreed court could proof custody by the court set aside by County. of Clearfield consider this case on its we however, merits— If, decree of the Ohio as a and treat nullity, majority opinion do—this below

577 child the great-grand- because of his tender years (plus to his be awarded age father’s should still home) Pennsyl- mother. This been the settled law has well 521 Binney vania Com. v. 5 ever since Addicks, In in adultery the mother had lived (1813). that case had had a with another man for years several by child him. by corpus on a habeas Nevertheless, one ten father children, of their two old and years Court, the other seven years old, through although strongly disapprov- C. J., Tilghman, the children to the ing mother’s conduct, awarded their appears considering mother “it saying us, tender that kind assistance, stand need they age, which can be none well as a mother” so afforded

“In of tender years the needs of a child general, rea compelling best and unless served its mother should be com such child sons appear contrary, ex mother. Com. mitted to the care and Pa. Ct. Superior rel. Batyko, Lamberson v. ex rel. v. 161 Pa. Su Gates,

43 A. 2d 364”: Com. Gates effect: Com. 424. See also to the same perior Ct. 423, 357; Keller v. 90 Pa. Ct. Com. Superior ex rel. Keller, Superior v. 166 Pa. Ct. Lucchetti, Lucchetti ex rel. v. 165 Pa. Superior Com. Oliver 530; Oliver, A. 2d 445. “This true others although Ct. custodians have be who been suitable have Miller Barclay, Com. ex rel. to it. come attached rel. Lamberson Com. ex 315; Ct. 96 Pa. A. 2d 364”: Com. 157 Pa. Superior Batyko, 167 Pa. Ct. Superior ex rel. George George, 566, 563, 76 A. 2d 459. add that it is common may we

Parenthetically, can years a child of tender and does that knowledge if treated kind- new attachments with form quickly into those whose care it is given; affection and ness will be a the child removed to good fact .that the and is not of this outside controlling: home 578 Superior Pa. Ct. Black v. 79 409; ex rel. Black,

Com. Superior Wagner, Ct. ex rel. Miller v. 160 Pa. Com. Batyko, Lamberson 52 2d Com. ex rel. A. 536, 235; Superior Pa. 2d 364. Ct. 43 A. 389, experience common These as the authorities, well court and demonstrate both what mankind, Superior viz: was Court of found,* and one- for four best interests welfare year mother. half old child that he be to his awarded contrary compelling con There reasons were “no for stronger than clusion” far reasons there ; indeed, were why particular case the child should have usual this awarded, and the been to the mother. The Ohio court County court of that the mother Clearfield found both great-grandfather qualified and the care for were majority attempt opinion, child. The an great- awarding bolster its reason the child to points grandfather, out father in the that the lives same (three-room) house as So far merits his son. as the is of the fact this view that unimportant, concerned, no court has ever awarded the son to this father; County the court of found little Clearfield boy no interest affection father. showed in, for, practical The fact the mother is a and that nurse; great-grandfather is and that the relief; on child living any a house without modern neces strong sities if furnishes additional reasons, life, why young reasons be with needed, should * in accordance decision July requirements 1; P. of the Act of L. Section which, §1874, provides appeals resulting from habeas 12 P.S. involving corpus proceedings be to children shall Superior Court, testimony “who shall consider make fight justice upon merits be ... as to shall such order Edberg, long.” ex rel. v. Pa. samé effect Com. See to the McGee, supra, ex rel. Ganster v. and Commonwealth Pa. Su 12, 14, 157 5. perior A. 3 4 his mother. The decision of the learned trial judge strongly been too influenced seems have natural in the great county Clearfield pride fine citizens. every

For each and one of these reasons I would affirm of the Superior Court. opinion Company, Appellant. Pittsburgh Railways Guca v.

Case Details

Case Name: Commonwealth Ex Rel. Graham v. Graham

Court Name: Supreme Court of Pennsylvania

Date Published: May 23, 1951

Citation: 80 A.2d 829

Docket Number: Appeal, 95

Court Abbreviation: Pa.