Lead Opinion
Defendant sued for divorce and custody of the children in «the Circuit Court of Harrison County, at Bethany, Missouri. The husband filed answer and a cross bill asking for divorce and the custody of the children. Trial was had on the merits and the petition of the wife was dismissed, and on the cross bill the husband was granted a decree of divorce on May 3, 1948. The court took the matter of the custody of the children under advisement, leaving their temporary custody with their maternal grandmother.
On June 21, 1948, the court decreed that it would be for the best interests of the children that their permanent custody, care, and control be granted to the father from that day forward until each child should attain the age of twenty-one years, with the provision that they should be kept and cared for by him in a suitable private home where at all times they should have the care of an active, capable and proper female person of good habits and character. The court designated Mr. and Mrs. Clarence Bishop, of Trenton, Missouri, as such suitable persons.
The decree also provided that the children should not be taken from Missouri without express permission of the court; that the mother should at all times be kept informed as to their location and have the right to visit them at all reasonable times, and should be permitted once each year for any two-week period between June 1 and August 20 to have the custody of the children at any suitable place, or with her parents, and that during each year in each of six specified months, including October, the mother might have the children from ten a.m. Saturday until six p.m. of the following day, providing she did not take them out of the state of Missouri, and more than fifty miles distant from where they were living.
Defendant married Cliff Crawley and they established a good home a few miles west of Pleasantville, in Warren County, Iowa. On October 29,1948, as provided in the deeree, the mother received the children from the Bishops, who had brought them into Trenton for her. She took them out of Missouri and to her Iowa home without the knowledge or consent of the Missouri court or the plaintiff. She did not return the children to the Bishops, but on November 1, 1948, she telephoned to the welfare office at Trenton that she did not intend to take the children back to that place.
On November 18, 1948, the petition for the writ of habeas, corpus was presented to the Honorable S.E. Prall, a judge of the Fifth-Judicial District of Iowa, alleging in substance the matters above set out, and the illegal restraint of the children, and praying that the writ should direct the officer serving it to bring the children and the defendant before the court for a hearing forthwith, for the reason that if defendant was simply given notice of a hearing at a later date, she would remove the children from their then location and secrete herself and them. He also prayed that upon the hearing the custody of the children be awarded to him. A eopy of the Missouri divorce decree was attached to the petition.
Defendant, on November 19, 1948, filed answer admitting her present control and custody of the children at her home to which they came willingly, and denying any restraint of their liberty or any intention to remove the children to any secret place. Other allegations were in substance that she took the children from the place where they were kept because it was not a fit and proper place for them, and that she, in good faith and in order to protect them and further their welfare and to give them a good home and a mother’s love, brought them to her home in Iowa; that since the rendition of the divorce decree conditions had changed and the welfare of the children demanded that.the custody granted by said decree be changed; that the father to whom the custody of the children was therein given is not now a fit person to have their custody, and the place where he was keeping them, has, since said decree, become an unfit place for them, and the Bishops have since become unfit persons to care for said children; that she (defendant) since the rendition of said decree has
It was also alleged in the answer that “under the laws of the State of Missouri, a decree awarding the custody of children is not a final decree, and' that the same may be changed, reversed, or amended at any time by the court entering the decree, if the welfare of the children requires it. * * * that said court entering the decree would have power to grant custody to this defendant, mother of said children, and would have power to change said judgment granting her custody, and would have the power to change said decree changing the times and terms under which this defendant could have said children, and would have the power to permit said children to be removed from the State of Missouri and taken to the State of Iowa.” Defendant prayed that the custody of the children be granted to her, and that the petition of plaintiff be dismissed.
Plaintiff moved to strike much of the answer for the reason that there was “no allegation that plaintiffs [children] are domiciled in Iowa as a basis for the court’s assuming jurisdiction for the purpose of making a determination as to whether there has been a change in circumstances since the decree in Missouri, and as to whether a change in custody from that ordered in Missouri should be made, and it appearing positively from the pleadings the domicile of the plaintiffs is in the State of Missouri.”
After oral arguments on the motion it was overruled by the court for reasons stated at some length, the substance of which was expressed thus:
“It would seem that the full faith and credit clause of the Federal Constitution requires courts in all states of the United States to recognize the decrees of courts of the state where granted when that decree has become a finality * * *. However, in divorce cases where the custody of children is concerned * * * I think in most states, at least in this state, they are subject to change, if the conditions justify the change. So that under the Iowa law and under the Missouri law the decision of the Missouri court as to the facts and circumstances at the time the decree was entered is a finality. However, where there is a change of circumstances which ought to justify the change by the court in Missouri, it would seem from the eases that the court where the case is being tried would have the right to make such changes as would appear to be proper. * * * In other words [speaking of the ruling on the motion only], that is the question the court is deciding here, not on the evidence as to whether there should be a change made in the decree, but whether this court has a right to consider the question, * * * The court holds that it does have jurisdiction of the matter to determine it and to hold a hearing on the questions raised by the pleadings.”
We agree with the ruling of the court. It was based on sound principles and preponderant precedent.
The trial was then postponed to hear testimony on the factual issue of whether there-had been a material change, since the Missouri decree, in the conditions and circumstances bearing upon the best interests and welfare of the children. On November 26, 1948, plaintiff filed a reply to defendant’s answer in which he admitted the ages of the children, as alleged, and that defendant was their mother; denied the other fact allegations, and realleged the questions of law raised in the motion, and that the children were domiciled in the State of Missouri, and were forcibly brought therefrom into Iowa where they have neither residence nor domicile; that the State of Missouri has exclusive jurisdiction to' determine the custody of the children, and the court of the forum “has no jurisdiction to determine the matter of custody other than for the purpose of honoring the Missouri decree and giving custody to Elza Lee Helton.” The plaintiff so prayed in the reply.
When the trial was begun on December 2, 1948, before the District Court of Warren
Following these admissions plaintiff then orally moved that because thereof the court had no alternative than to enter a decree in favor of the plaintiff awarding the custody of the children to him, in view of the fact that the court of the forum was bound under Article IY, section 1, of the Constitution of the United States to give full faith and credit to the Missouri decree. The court overruled the motion upon the grounds that infant-custody decrees were ordinarily not within the purview of the Constitutional provision in that said decrees were generally not final in the sense of being fixed and unalterable, but were temporary, provisional, and subject to modification as changing conditions and circumstances might require, and, furthermore, that in making any such modification the Iowa court would be doing only what the Missouri court would do under like circumstances, and would be giving to the Missouri decree the same force and effect that it has in the jurisdiction where rendered.
Plaintiff states in his printed argument that “the full faith and credit clause is not the basis of the appellants’ argument in this ease * * * and it is not argued that where there has been a change of circumstances it is a violation of the full faith and credit clause to make a change in the award and custody.” Later in his argument he asserts that the clause is a matter for consideration in the appeal.
There was a trial as an equitable proceeding upon the merits and both sides offered testimony upon the issues made by the pleadings. Testimony was received from a number of witnesses produced by defendant tending to show that since the divorce she had remarried and established a home and that the circumstances had changed since the Missouri decree, and that it was for the best interests of the children that they be in the custody, care and control of the defendant. The plaintiff, defendant, and their two children, whose custody was in controversy, were not only in court by their pleadings and by their respective attorneys, but they were also physically present in the territorial jurisdiction of the court, and in the courtroom during the trial. The plaintiff and Mr. Clarence Bishop, one of the special custodians selected by the Missouri court, testified for plaintiff.
On December 13, 1948, the trial court filed its written findings and decree reciting the appearance of the parties and their attorneys, the trial and submission of the cause. It found that the Missouri court had jurisdiction to render the decree granting divorce to plaintiff herein, and awarding to him the custody of the children. It also found that defendant took the children, who were in her care and custody on October 29, 1948, from Missouri into Iowa and that “she is now furnishing them a proper home. That since the entry of the decree in the Missouri eourt * * * conditions have changed, and that it is for the best interests of * * * Betty Lee Helton and Joan Eloise Helton, by reason of said changes, that they be left with the defendant herein, Oma Lee Crawley * * * and that the said Oma Lee Crawley be now given the care, custody and control” of said children. The court rendered judgment and decree in accord with its findings of fact and conclusions of law, dismissing the petition, and taxing the costs against Elza Lee Helton.
The printed record states: “The testimony is not abstracted for the reason that plaintiffs are not appealing from the ruling of the court on the question of change in circumstances. The plaintiffs do not on this appeal raise the question of whether the lower court erred in finding that there had been a change of circumstances since the date of the Missouri decree.” In plaintiff’s reply argument it is stated: “The question of whether there was a change of circumstances is not before this court.”
It may also be said that the appeal does not challenge the decree or the finding of the court that it was for the best interests
In giving the “scope of the appeal” in the foreword of the printed argument, plaintiff states that the appeal is specifically limited to the following questions: 1. Did the Iowa court have jurisdiction to make an award of custody different from that made by the Missouri court f 2. Did the Iowa court fail to give full faith and credit to the decree of the Missouri court? 3. Asa matter of comity between states, did the Iowa court err in looking into the matter of whether or not there had been a change of circumstances since the date of the Missouri-decree, taking into consideration the recent Missouri trial and decree, the terms of the decree, and the manner in which the children were obtained and brought into Iowa?
Again referring to the “scope of the appeal”, the printed argument states:
“This appeal is limited solely to the question of whether the Iowa court should have assumed jurisdiction to make a permanent award of custody — in other words, whether the Iowa court should have gone into the question of change of circumstances in view of the fact that the children were still domiciled in Missouri and had been brought surreptitiously into Iowa by the mother.”
He states but one proposition on which he relies for reversal, to wit: “The trial court should not have assumed jurisdiction to determine the matter of permanent custody of the children.” The court did not make a “permanent” award of custody, and its decree did not so state. Decrees for the custody of minor children are always open to change if changed conditions require it. Goodrich v. Goodrich,
Under plaintiff’s proposition he states four brief points:
(a) The children are domiciled in and are residents of Missouri.
(b) The Missouri decree is entitled to full faith and credit in Iowa.
(c) The Missouri court retained jurisdiction to modify its custodial award.
(d) “The courts of a state into which minor children are brought temporarily, illegally, or in violation of a decree of a sister state, which children are not domiciled in or residents of the state into which brought, have no jurisdiction, or, as a matter of comity, should not assume jurisdiction to make an award of permanent custody of the children different from that of the sister state in a dispute between parents.”
In further elaboration of brief point (d) plaintiff states:
“This section of our brief and argument presents the crux of the ease. Our position is that the Iowa courts have no jurisdiction under the circumstances of this case to make an award of permanent custody; or, if the Iowa courts do have such jurisdiction, they should not as a matter of comity exercise it. The circumstances in this case are that a sister state with unquestioned jurisdiction has made an award of custody, that the children are still domiciled in and residents of such state, that they were brought into Iowa in violation of the decree of the sister state by a person not entitled to their permanent custody, and that the ease arises as a dispute between divorced parents and not for the purpose of protecting a child being abused and neglected in this state.”
Hulled down to the nut, plaintiff relies for reversal on two propositions, first, that the trial court had no jurisdiction to award custody of the two little girls to their defendant-mother, and, second, if it had such jurisdiction, under the doctrine of comity between the states, it should not have exercised it.
Plaintiff does not base his contention of lack of jurisdiction on any principle of law, nor on any single stated fact, but
I. (a) The children are domiciled in and are residents of Missouri. Minor children, ordinarily, are incapable of choosing a domicile, and if they are living with their parents the law makes their father’s domicile their domicile. By the Missouri decree of divorce the plaintiff was made a legal custodian of the children, and his domicile being in Missouri that state was also the domicile of the children. It remained their domicile until they obtained another one, and that occurred when the trial court awarded their custody to their mother and they then took her Iowa domicile. The defendant has made no contention to the contrary, but she does not concede that the Missouri domicile of the children is a controlling factor in this case.
As stated in State ex rel. Board of Christian Service v. School Board,
“Ordinarily, the domicile of an infant is, by law, the same as the father’s, if living. * * * Generally, the infant has no choice as to his domicile and has no legal power to change it. With respect to residence, the law is more liberal. Where that alone is involved, an infant can acquire one different from that of his domicile or the domicile of his father or guardian. [Citing authorities.] ”
With respect to the residence of the children she concedes that they were residents of Missouri until she brought them into Iowa, but asserts that thereafter they abided with her, lived with her, and resided with her and her husband in their home in Warren County, Iowa, with the intention on her part to keep them there. We agree with the contentions of the defendant in the matters above set out, but will discuss them further under brief point (d).
II. Brief point (b). The Missouri decree is entitled to full faith and credit in Iowa.
Article IY, section 1, of the Constitution of the United States provides that “Full Faith and Credit shall be given in each State to the * * judicial Proceedings of every other State.” Without doubt the provision of the Missouri decree awarding the custody of the children to their father was within the protection of this constitutional clause and entitled to recognition outside of Missouri, and cannot be questioned with respect to facts on which the decree was based. But the Missouri custodial decree is res judicata of only what was at issue in said cause and adjudicated by that court, and it is protected by the constitutional provision only to that extent. Judicial decrees and orders providing for the custody of minor children are not unalterable finalities, even though they may appear so on their face, but are provisional and subject to change as future conditions and circumstances may require in the best interests and for the welfare of the children. When such changes or modifications are later made by a court of the state which rendered the original decree, or by a eourt of another state, such subsequent decrees or judgments will not be in contravention of the constitutional command, or attacks on the earlier judicial proceeding.
We must accept the record before us as establishing that there were changes, subsequent to the rendition of the Missouri decree, in the conditions and circumstances surrounding the children to sustain and justify the decree of the trial court in changing the custody as fixed by that decree, and awarding their custody to the mother of the children.
The principles of law above-stated are sustained by all authorities. Just a few are noted: Barnett v. Blakley,
Apart from the constitutional provision, it is the duty of the courts of any state to give effect to a properly rendered judgment of the courts of another state, and to recognize as res judicata any issues settled by that judgment.
There is another reason why the trial court did not violate the full faith and credit clause. A statute of Missouri provides, and its decisions hold that its courts may modify a child-custody decree if subsequent changing conditions require it. In re Krauthoff,
The Federal constitutional provision on which plaintiff relies requires that a state shall give to the decree or judgment of a court of a sister state only the force and effect to which it is entitled in the state where it is rendered, and if the courts of the latter state can modify a minor-child-custody order or decree upon a proper showing of a change of circumstances since its rendition, the courts of another state can do likewise. Goodrich v. Goodrich, supra,
“When, therefore, we come to- consider what faith and credit must be given to these judicial proceedings of New Jersey, we must first ascertain what effect that State attaches to them. The statute enacted to carry into effect the constitutional provision provided that they should have in any court within the United States such faith and credit ‘as they have by law or usage in the courts of the States from which they are taken/ Act of May 26, 1790 [1 Stat. at L. 122, eh. XI]. They can have no greater or less or other effect in other courts than in those of their own State. Cheever v. Wilson,
The trial court gave to the Missouri decree all the faith, credit and effect to which it was entitled.
III. Brief point (c). The Missouri decree retained jurisdiction to modify its custodial award.
The fact that said decree retained such jurisdiction is of no consequence in this case. Such retained jurisdiction could in no manner or degree affect or limit the jurisdiction of the District Court of Warren County, Iowa, particularly, when the plaintiff invoked the jurisdiction of that court to determine the custody of the children, and it had jurisdiction of the subject matter and of all necessary, and interested parties. There is no merit in this brief point and proposition. Goldsmith v. Salkey, supra,
IY. Brief point (d). We will not repeat it. We will discuss first plaintiff’s statement therein that the trial court had no jurisdiction “under the circumstances of this case” to make the custody award which it did make. Later we will take up the matter of comity referred to in the brief point.
The action instituted by plaintiff is the statutory proceeding of habeas corpus. At common law the prerogative writ of habeas corpus ad subjiciendum was to require one unlawfully detaining another to produce him and submit to the court’s order. The Iowa statute (section 663.1, Code of 1946, I. C. A.) on its face applies to one who is illegally restrained or imprisoned. But as applied to the custody of minor children,
In tracing the history of this “right in the State,” the Tennessee court in said opinion (page 526 of 139 Tenn.) quoted from the discussion of Judge Betts concerning the enlargement of the function of the writ of habeas corpus, in the case of In re Barry, C. C. N. Y.,
“* * * the sovereign, through this writ, acts * * # in re-gará to infant children, as parens patriae, making, in these high capacities, summary order that the party be forthwith set at liberty, if improperly and wrongfully detained. [Citing cases.] The state, thus acting upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, takes upon itself the power and right to dispose of the custody of the children, as it shall judge best for their welfare. [Citing eases.]
“The cases before cited show that the English and American courts aet in this behalf solely upon the assertion of the right of the sovereign whose power they administer, to continue or change the custody of the child at his discretion, as parens patriae.”
Continuing, the Tennessee opinion states: “Under the change of government from a monarchy to a republic, the functions of parens patriae did not cease to exist. Such authority passed from the king to the government of the State or sovereign people.”
In In re Badger,
“Jurisdiction as to the Custody of Minors. — Whether this jurisdiction had its origin in the fiction of the right of the King as parens patriae, to which we referred approvingly in State ex rel. Cave v. Tincher,
“It will be seen not only from the lucid text of Pomeroy but from the adjudicated cases, that the inherent power of a court of equity over the persons arid, estates of infants is very wide. [Citing authority.] While it is technically true that a requisite to jurisdiction is that the infant must be a ward of the court, it is not necessary that it be a public charge or that the purpose of the proceeding be to so declare it * * *; it becomes the ward of the court when it is brought before it for any purpose; and any proceeding or application in equity relating directly to the infant is sufficient. [Citing eases.] Statutory regulations as to the custody and care of infants will not affect the court’s jurisdiction. [Citing cases.]
“The infant’s ownership of property is not essential to the existence of jurisdiction.”
In the law dictionaries of Bouvier, Black and Ballentine, the term parens patriae is defined as the father or parent of his country; in England, the King; in America, the people; the government is. thus spoken of in relation to its duty to protect and control minor children and guard their interests. In cases involving the custody of minor children, whether it be by divorce or separation proceeding, by habeas corpus, petition to the chancellor, or other equitable proceeding, the court, as a department of the state, in thus exercising its inherent power and jurisdiction in equity, is spoken of as acting in the capacity of parens patriae. In re Cooke,
There is no dissent among the authorities or decisions to the doctrine of parens patriae as above stated. Other child-custody cases, without using the Latin term,-announce the same principle of law. Avenier v. Avenier, Tex. Civ. App.,
“The principle underlying the Texas rule recognizing custody jurisdiction of a child, even though the parents and the child have a domicile or domiciles outside the State is ‘the welfare of society, primarily as evidenced by the welfare of the child, but involving also the right, and, for that matter, the duty, of a state, being the relatively independent sovereign that it is,, to look after the welfare of individuals within its borders * * Wicks v. Cox, [
See also Starnes v. Albion Mfg. Co.,
Minor children are not only wards of the state in which they are residing but they are the wards of any court having jurisdiction of their persons in any proceeding involving their custody, or their personal or property rights. “After the court’s
The prerogative of the sovereign, whether king or state, in the protection of infants, has passed to the courts of chancery and equity for its exercise and dispensation. This jurisdiction, as said in Townsend v. Kendall,
“Besides the jurisdiction conferred upon the court of chancery by statute, it has authority under its general equity powers to deal with the custody of infants, which authority is in no way dependent upon statute. Its authority is so broad that the permanent custody may be fixed even in disregard of the legal rights of parents where the welfare of children requires it.”
In Finlay v. Finlay, supra,
“The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child. He is to put himself in the position of a ‘wise, affectionate and careful parent’ (Queen v. Gyngall, [2 Q. B. Div. 232, 238]), and make provision for the child accordingly. * * * He is not determining rights ‘as between a parent and a child’ or as between one parent and another (Queen v. Gyngall, supra). He ‘interferes for the protection of infants, qua [as] infants, by virtue of the prerogative which belongs to the Crown as parens patriae’ (Matter of Spence. [2 Phil. Ch. 247, 248]).”
This court is, and has been, in full accord with the substantially universal decisions of the courts that a court of equity has inherent power and jurisdiction in all proceedings involving the custody of minor children, and that in exercising that power and jurisdiction it acts in the capacity of parens patriae, as a department and agency of the State. In Mollring v. Mollring,
“But though the function of the district court, while entertaining a divorce suit, is thus limited, it does not follow that the court had no inherent power to deal with the custody of infants. The district court has the powers of the chancery courts. The chancery court has original jurisdiction over the custody of infants as parens patriae. See Power v. Power,
Just recently, in Addy v. Addy,
The district court had jurisdiction of the subject matter, the custody of the children, and of all necessary and interested parties. The mother of the children, the defendant, was domiciled in, and a legal resident of, Warren County, Iowa, and the children were living with her. The plaintiff, father of the children, and their legal custodian, appeared in court by his petition and brought the children physically into the court and made them wards of the court by the writ of habeas corpus wbicb be.procured. By the prayer' of'bis petition he invoked the jurisdiction of the court to determine the custody of the children. By so doing as stated in Power v. Power,
Under .procedure and facts quite identical in every material respect, the court in Ex parte Peddicord,
“When petitioner filed his petition for a writ of habeas corpus all of the parties were in Michigan and within the jurisdiction of the Delta county circuit court. Petitioner, having submitted to that court the issue of the custody of the child and invoked its jurisdiction * * * cannot now complain of its lack of jurisdiction but must abide the decision of the Michigan court.”
People ex rel. Wagner v. Torrence,
“The petitioner by his answer to the return, invoked the jurisdiction of the court on the question of custody. This then became an equity matter and a court of equity is the ever qualified and zealous guardian of all children of tender .years and will exercise its powers at any time, any place, in such a way as their protection requires.”
In Scott v. Scott, Ind.,
In State ex rel. Clark v. Clark, a habeas corpus case,
“This court has held that infants are wards of the court having jurisdiction of their person, Dorman v. Friendly, [
In Lake v. Lake,
“ ‘To enter a valid judgment or decree a court must not only have jurisdiction of the parties but it must also have jurisdiction of the subject matter. The subject matter involved in a proceeding to determine the question of custody of minor children of parties to a suit for divorce is the children themselves, and if the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right of custody/”
The opinion cites numerous authorities. See also Gilman v. Morgan,
Y. Plaintiff challenges the jurisdiction of the trial court and bases his contention for lack thereof on certain facts. Two of these being that the children were domiciled in and residents of Missouri. Keeping in mind the dominant fact that it is the best interests and the welfare of infants and minor children that is the supreme concern and consideration of the State, as against which all other claims, rights, relations, and persons sink into insignificance, it becomes clear that their domicile is not the essential factor which calls for the exercise of the sovereign protection, care, control, and custody of them, but all that is necessary is the presence of the infants in the state — that they are within its borders. When that is the fact, be the infant a destitute, unprotected, homeless waif, or the subject of litigation for his custody between his parents or others, and not without care, the State, in the first instance, through its agencies, takes direct and immediate protective action, and in the seeond, in any litigation involving the custody of tke infant, be it divorce, babeas corpus, or other proceeding in equity, the State injects itself as a vitally interested third party.
An adult or a child may be domiciled in one state and live or reside in another state. In re Estate of Jones,
There are a few cases in which the court has declined to exercise jurisdiction where the child was domiciled in another state, but sueh holdings are contrary to the great majority of decisions. The latter decisions are that where there is a controversy over the custody of a child and the aid of the court has been invoked to determine the issue and the litigants are properly before the court, and the infant is physically present
“We are unable to see that the facts that the child was born in another state, and that he has never by an act or election of his own or of his guardian obtained a new home here, have a decisive bearing on the question at issue in the present case. He is now lawfully within the territory and under the jurisdiction of this commonwealth, and has a right to claim the protection and security which our laws afford to all persons coming within its limits, irrespective of their origin or of the place where they may be legally domiciled. Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing in the territory and within the jurisdiction of an independent government. * * * The question whether a person within the jurisdiction of a state can be removed therefrom depends, not on the laws of the place whence he came or in which he may have his legal domicile, but on his rights and obligations as they are fixed and determined by the laws of the state or country in which he is found.”
Dorman v. Friendly,
“This, to our mind, is one of the immaterial factors which led the trial court into error. The law is and has been from time immemorial that each state is not only empowered, but is charged with the duty, to regulate the custody of infants within its borders. This is true even though the parents may be residents of another state. * * For this, the residence of the child suffices, though the domicile be elsewhere.”
Finlay v. Finlay, supra,
“The jurisdiction of a State to regulate the custody of infants found within its teiwitory does not depend upon the domicile of the parents. It has its origin
What the court said about domicile was not necessary to a decision as there was no issue of domicile or legal residence in the case, but the statement of Justice Cardozo has been widely quoted and accepted in custody cases such as the one before us. It has been followed in New York in such cases.
Without setting out the facts or procedure in numerous other decisions in which the facts in all material and pertinent respects, except for details, are for all practical purposes substantially like those in the case before us, in which decisions the respective courts determined the question of custody without regard to the fact that the child was domiciled in, or was a legal resident of, another state, we merely note the citations. We have placed an asterisk before the title of each case in which the court gave no controlling consideration to the violation of a court order in the removal of a minor child from a court’s jurisdiction: *Jones v. Bowman,
In some of the citations noted above the matter of jurisdiction is not mentioned, but as said in Haynie v. Hudgins, supra,
In Barnett v. Blakley, supra,
Plaintiff has cited Ex parte Burns,
There is an interesting discussion of some of the questions here involved in the case of Sampsell v. Superior Court in and for Los Angeles County,
“ ‘From a standpoint of expediency and of achieving socially desirable ends, there seems to be only one argument in favor of confining jurisdiction to a single state; that it will produce stability and discourage the crossing of state lines to avoid the effect of unpalatable custody decrees.’ [The opinion continues] : It is doubtful, however, whether the best interest of the child, the paramount consideration in custody proceedings, is served thereby.
“There is authority for the proposition that courts of two or more states may have concurrent jurisdiction over the custody of a child. (Finlay v. Finlay,
“Thus, if the child is living in one state but is domiciled in another, the .courts of both states may have jurisdiction over the question of its custody. It does not follow, however, that the courts of both states will exercise that jurisdiction and reach conflicting results.”
As stated in Butler v. Butler, supra, 83 N. H. 413, 416,
“The courts of the'State of the current situs of the child are ordinarily in a position to exercise their jurisdiction more beneficially and- more effectively than those of any other state (Dixon v. Dixon, 76 N. J. Eq. 364), [
The same view is stated in Wicks v. Cox, supra,
The plaintiff would have us say that the trial court had no jurisdiction to even look into the circumstances or have a hearing with respect to changed circumstances. He asked the court to award the custody of the child to him, but to make no inquiry as to whether such custody was for the children’s best interests. This is an extreme position. The Supreme Court of California answered this contention in Titcomb v. Superior Court,
YI. Another circumstance urged by plaintiff as a reason why the tria] court had no jurisdiction, 'or If it did, that it should not have exercised it because of comity, is the fact that defendant without permission of the Missouri court brought the children into Iowa and kept them here. The point needs but ]ittle more comment. As appears in Division V hereof this fact has been present in many child-custody cases and has been given little consideration or weight either on the issue of jurisdiction or on the issue of the fitness of the offending parents as custodians. There is sound reason for such attitude by the courts, and it is in complete accord and compliance with the controlling and ultimate consideration — what is .best for the child? He should not suffer or be penalized or discriminated against because of the indiscretion or offense of his parent. The child is innocent of any wrong. The children in this case are lawfully in Iowa. They are neither offenders in any respect, nor contraband property, and are entitled to the care and protection of the State, and of its courts. This is the position uniformly taken by the courts. The Colorado court in People ex rel. Wagner v. Torrence, supra,
“Furthermore, since the welfare of the child is the controlling consideration and since it is not chargeable with its parent’s misconduct, this jurisdiction will be exercised even though the child was brought to this state by its parent fraudulently, and for the purpose of conferring jurisdiction over the question of custody, provided, however, that the child is, as in this case, too young to decide what is best for its own welfare.”
The same thought was expressed more fully in White v. White, 77 N. H. 26,
“Ordinarily a man should not be permitted to take advantage of his own wrong-doing, but this principle must not be allowed to interfere with the basic rule that the child’s welfare is the primary consideration in any ease involving its custody. A court cannot determine what is best for the child without hearing all the pertinent facts and testimony concerning present conditions.”
In Commonwealth ex rel. Pukas v. Pukas, supra,
“Against her is the record of two ‘kidnappings’ of the child * * # but this can be explained and palliated as a compelling emotional pressure of a mother’s love and yearning for her child. Even if it were viewed as a serious past dereliction it would not stand as an insuperable obstacle to her claim to the custody of a child of tender years.”
In Commonwealth ex rel. McTighe v. Lindsay, supra, 156 Pa. Sup. 560, 563,
“We note, but merely to exclude from the scope of our decision, the questionable methods pursued by both parties to secure or retain possession of the child. We can well understand that they were animated by excessive zeal which overcame sound judgment.”
In Langan v. Langan, supra, 80 U. S. App. D. C. 189,
“We cannot close our opinion, however, without the following observations. Appellee in this case is twice in contempt of court. He has, perhaps, been poorly advised and may have acted unwisely in his efforts to protect his daughter, with the result that he now faces possible punishment for contumacy in California
In Boone v. Boone, supra,
“Although the present ■ proceeding is in the name of the children, appellant’s argument is pitched, largely, upon the adversary rights of the parents; much weight is given to judgments entered, orders issued and disobeyed. We may as well recognize that such considerations are very unreal in the case of parents and children. In doing so we do not for a moment sanction kidnapping or encourage contempt of court. The important consideration is that when a court is confronted with a question of custody, it is required to act as parens patriae. Under such circumstances, children cannot be used as pawns in a game of legal chess to work out conceptions of status and property rights.” (Citing eases.)
There is no evidence that defendant gave any thought to legal procedure or to the matter of jurisdiction. She alleged that she took the children in good faith and only for their best welfare. We may assume there was evidence to sustain the allegation in view of the trial court’s findings and decree. What she did was openly done. There was nothing secretive or clandestine. She kept no one in suspense, but promptly telephoned the Welfare Office at Trenton, Missouri, what she had done and what her intentions were. We conform to the great weight of authority in holding that the defendant’s taking of the children in no way bears upon the issue of jurisdiction.
Plaintiff’s counsel have suggested, but with no serious conviction we are sure, that if the decree appealed from is affirmed, and the children are “kidnapped” into Missouri, the courts of' that state may retaliate. We sincerely hope that there will be no further litigation. But if there should be, all concerned may rest assured that the courts of our sister state will be guided and controlled in any decision only by the highest good for these children. Courts do not seek the opportunity of trying child-custody cases. “Of all the questions with which a court of justice is required to deal, that of the custody of [minor] children is the most difficult.” (Ex parte Agnello, 72 N. Y. S. 2d 186, 191.) The Missouri Appellate Court in In re Krauthoff, supra,
“It is an unwelcome task fraught with heavy responsibility. * * * It is a painful duty, from which every well-regulated mind must shrink since its performance has to do not only with the tender relations of parent and ehild, but involves the future course of a human life, and perhaps may have an influence upon the destiny of an immortal soul.”
VII. What we have said herein applies also to the issue of comity. The State of Iowa and its courts recognize and respect the principles of comity governing the relations between this State and other states and nations, unless prevented by some public policy. But as already stated herein the Missouri decree which plaintiff urges is binding on the Iowa eourts is limited in its effect to only those facts and conditions on which the decree was based. It has no binding force on the Iowa courts as to facts and conditions which arose thereafter, and were in existence when the trial court rendered its decree. The doctrine of comity has no controlling application in the case before us. In Hanrahan v. Sears, 72 N. H. 71, 72,
“But there is a further reason, in my opinion, why the rule of comity is not applicable here, and it is that in proceedings of this nature, the sole concern of the court in whose jurisdiction _ the child may be is ‘what will be for the best interest of the ward under all the circumstances ? It should control everything else.’ In re Stockman,
In the last-cited case the Michigan court said:
“Comity cannot be considered in a case like this, when the future welfare of the child is the vital question in the case. The good of the child is superior to all other considerations. It is the polar star to guide to the conclusion in all cases of infants] whether the question is raised upon a writ of habeas corpus of in a court of chancery.” At page 193 of 71 Mich., page 882 of 38 N.W.
In the Yan Dyk case, supra, the court continued:
“On the question as to how much importance should be placed upon foreign judgments where the welfare and interests of children are under consideration, People ex rel. Allen v. Allen,
The" same thought is expressed in People ex rel. Noonan v. Wingate, supra,
The decree of the able trial court is sound upon the facts, so far as they are disclosed, and upon the law. These little girls had been cared for by the defendant until taken from her by the Missouri decree. As said by Justice Brewer in In re Bort, supra,
The judgment and decree is — Affirmed.
Dissenting Opinion
(dissenting) — I am unable to agree with the result announced in the majority opinion, and respectfully dissent.
The majority opinion holds that the trial court had jurisdiction to hear and determine the issues present, and I agree. It is a habeas corpus action. The corpus is the two minor children. They were actually before the trial court at the time of the hearing, this being the basic requirement for jurisdiction to try the issues raised.
The majority opinion also holds that the full faith and credit clause is not a
However, appellant asserts that on the theory of comity the trial court should have refused to ignore the Missouri decree even in the face of the changed conditions and should leave the question for the determination of the Missouri courts. The majority says no, and with this I disagree.
Comity is the recognition which one Nation allows within its territory to the legislative, executive and judicial acts of another Nation, having due regard both to the international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. Hilton v. Guyot,
The polar star in this type of litigation — custody of children —is the best interest of the children. It is clearly not only the right but the duty of the courts of this state to safeguard the rights of its citizens and persons legally within its boundaries. The rule announced in the majority opinion, while apparently in accord with the weight of authority, goes beyond that. It is an’ open invitation to divorced parents, who have had their day in a court of competent jurisdiction, to bring by stealth or force into this state, children to whose custody they have been denied and thus avoid the effect of a legal decree. By this rule the status of the child is constantly in doubt, depending upon the views of the eourt before whom it may happen at the time to be. This is not, in my judgment, conducive to the best interest of the child. If the custody, as provided in the decree, is not proper we must assume that the eourt making such order is just as anxious to protect the child as is the court of this state, and that upon proper application a change would be made.
The rule announced in In re Mullins,
“We now hold that the decrees of a court of a sister state must be given full credit in cases in which the court of the sister state has jurisdiction, and that we will not consider the change of custody of children whose custody has been determined by that decree, until such time as the children become domiciled in this state,” and at page 445 of 26 Wash., page 804 of 174 P. 2d: “All reasonings and ideas of fair play and justice demand a holding that a parent acting in disobedience to an order of a eourt cannot seeure a new domicile for his or her child.”
I should like to see this court adopt the domicile rule as a basis for action in this type of eases and believe that thereby, the best interest of the child would be preserved. I would reverse the trial eourt.