*1 ARNOLD, Before EDGERTON and Justices, Associate Court, District sitting by des- ignation. ARNOLD, Associate Justice. appeal This an from an order District Court in a corpus proceed- habeas ing appellant, which directs Annette Hord Cook, the children, 9, mother of three and 14 age, to deliver them into appellee, Cook, George T. who is thеir The mother had originally been of the children in Supreme Court of County, York, Erie of a decree giving her an absolute divorce. She had then moved to Wash- ington with the sending them back periods for short to visit their father. 1939the father refused to return the chil- dren and asked the New York court for a modification of the custodial оrder. before the New York a man means and able to offer the *2 mother, who their many advantages. grandfather’s The will sufficient dren had been means be alimony givе only and to ma- week them greater a$5 educational children, the a for maintenance of advantages. week terial $15 had not home in them a to mаintain been able any specific The record does not show in separate mother Wash- from her obligation by to future grandfather the ington. education, beyond assumption he that the the New intends generous. of evidence to be On the basis this temporary York a order court advan- Whether these indefinite excеpt giving custody to grandfather the tages away from justify the children taking for seasons. holiday ques- against the wishes is a mother sep- pass. Thereafter the mother established tion upon court cannot which this in arate children home to receive the We wheth- only question can the of review ap- Washington. done its When this was she properly the trial exercised court plied custody to of New York court for present the to the discretion with a view hearing the in’ children. At this secоnd fare of the children. March, 1941, appeared earning she was it grandfather awarding custody only in a month. The children were $135 the findings on the question children, trial court made to remain school in Buffalo and wished the of welfare present of the report they there. welfare were A showed to itself because cоnsidered it well the New cared for. On this evidence of court order by York bound the New temporary York court continued the “I was as follows: only finding 1941. Its tody in the or find no such in circumstances change In the of 1941 when summer the in not this Court conditions to warrant re- Washington dren came to mother -the to the decree credit faith and giving full рut them in fused to return them. She court, juris- had which York of the New they school in where have the parents and the diction over been ever since. made consideration and which after due The the it did.” grandfather took no action in court order custody regain to of the children until Au- in error trial court The present pro- hе gust, when filed the York the New holding that the order of However, ceedings. alimony a week the $5 judicata the on was res support and cut off acting the children was a week $15 There present children. the of the welfare ground the the that mother was to in circumstances was sufficient contempt New York order. the in require to exercise its the trial court below it the that dependent to order judgment as what adequate mother established an borne had children. the the apрellee concerning which for stat- counsel that (1) the fact These circumstances were ed in his brief: “We do doubt that become children of tender these appellant home of the conditions which their mother the home to accustomed well-fed, pleasant that children are adequate; is and which established properly and cared for- as clothed stated established children are (2) that counsel, by we nor do doubt love and schools; that (3) Washington and thеir affection between them mother.” back go wish to to Buffalo. dren do not earnings slightly The mother’s had in- before these circumstances None creased thе order of 1941. Over a since it its when entered York'court New period year the of a had become children Washington They accustomed to schools. thеy testified that desired remain with changes oc true these It is There is no claim their mother. grandfather qualified violating the while mother was curred morally that the mother dis- But it is also true that order. York children. grandfather, taking immedi develop. instead action, award the To under ate allowed this situation to these circumstances will result in The was to cut off the taking action taken children young alimony three meager out of sum a week schools of $5 they support are established and of the chil have made a week for the $15 friends, sending away from their dren. Neither the violation mother, adequate has an given weight who home for nor the can question retaliation them, against determining wishes. The of the chil ar- parent doing reason so is the fact that dren’s welfare. effect. continued custodial order must is conclusive custodial order A dis- rule is purpose a strict promulgation.1 its prior to all matters as But the doctrine of res the cus- over litigation courage repeated set cannot judicata answer a sufficient tody of children. for all tle child’s welfare of a should we say litigation kind of that the come; prеvent a time to cannot *3 same repeated trials to avoid is determining seek subsequent at a what time from hard- It can charges counter-charges. and timе. at that is best for the children ly that an examination be claimed is to way expressing The say this rule usual children, in the changed” welfare of that “circumstances hаve happi- relating to their light new facts longer when the adjustment, of an is a re-trial ness “change phrase dren’s interest. But the course, examinations old issue. Of bе mechani circumstances” should not enough abuses, subject but we are cally happiness, construed. The children’s if in our courts to assume confidence аdjustment, psychological own their children’s wishes, ultimate are as much entitled to considera —the mind, kept their action fare-—is changes tion as environment. hеlpful. part intelligent most Boone,2 As was trial said Boone v. constantly keep court should mind Dis in the are now The children question, ultimate which is “whether the court here trict of Columbia and the welfare of requires the children now duty to jurisdiction has but owes provided in the previously ap thing which protect them and do the by the court of their domicile.” regard pears without opinion previously Boone anything v. Boone went on any other point out that a former decree reversеd Accordingly done. tody does not have the judi- effect trial of res enable the and the cause remanded to cata, but bearing upon ques an evidentiаl fact on the findings to make the ultimate of welfare. Where present welfare and the children’s tion of the circumstances same as exist- approрriate an order based to enter ed at the time decree, of the former the those findings. evidential effect of cording may, that decree ac- Rеversed and remanded. case, Boone “the judicata”. effect res This is a common the District sense rule to avoid a re-trial of the same Court. chargеs issues tried in the fully reasoning I concur in the and result proceedings. former But in this case the opinion, Arnold’s but would add of Justice retry trial court need not any issues which сhange in arising a fourth circumstance were before the New York court. is out of the conceded facts that the New required only to make independent an ex- twice York Court refused to award the cus- amination of what will best the tody yet of the children to their father and children’s a situation which is grandfather heretofore left them with different from the one before the New step-mother great- father York court. proposes of the time and to do so It has been argued that unless some again if the children should be ordered special emergency has arisen the former back to Buffalo. 1 Goodrich, 2 1942, U.S.App.D.C. (2d 399, Conflict of Laws ed. 132 F.2d 1938) 132, p. §
Cook v. Cook
135 F.2d 945
D.C. Cir.1943Check TreatmentAI-generated responses must be verified and are not legal advice.