IN RE PETITION OF MICHELLE GIBLIN TO RELEASE PATRICK SHAWN GIBLIN AND OTHERS.
No. 45274
Supreme Court of Minnesota
July 18, 1975
232 N. W. 2d 214
510 Minnesota Reports
James P. Cullen, Melvin B. Goldberg, Thomas G. Rowe, Mary Wahlstrand, and Cort C. Holten, Legal Assistance to Minnesota Prisoners, for respondent.
Petition for writ of prohibition commanding the Stearns County District Court to refrain from continuing, enforcing, or invoking any present or further equitable relief in favor of respondent, Michelle Giblin, divorced mother of the children whose custody is contested, and against petitioner, Paul Giblin, the divorced father, who was awarded temporary custody by an Illinois circuit court order.
The gist of the problem is this: A Minnesota court has acted, and continues to act through its injunctive order, and proposes to act further, so as to render ineffective an outstanding order of another state‘s tribunal. We are asked to consider what effect the courts of this state should give to the foreign custody order. The lower court, in a proceeding initiated by respondent to obtain the children‘s custody through a writ of habeas corpus and to obtain an injunction to prevent petitioner from removing them from this state and from her control, determined that the State of Illinois lacked jurisdiction to affect custody and that Minnesota was in no way bound by Illinois’ improper assertion of power. We issued an alternative writ of prohibition commanding the district court to refrain from further proceedings until the further order of this court. For reasons аppearing below, the alternative writ is discharged.
Petitioner and respondent are the natural parents of Patrick Shawn, age 10, Paul Kelley, age 7, and Shannon Lee, age 5. The parents were married in Illinois May 29, 1962, and divorced there on September 10, 1971. Custody originally was awarded to respondent; petitioner received substantial visitation rights. The divorce court found both parents to be fit and proper.1
In March 1972, the 1971 decree was modified by an Illinois court to permit respondent to take the children out of Illinois to
Respondent, who without contest claims a Minnesota domicile, has resided continuously in Stearns County since March 1972 and the children have been enrolled in various public schools in that area. Their maternal grandparents also live in Stearns County.
On May 3, 1974, respondent entered a guilty plea in Stearns County District Court to wrongfully obtaining public assistance. The court sentenced her to the commissioner of corrections for a term of 0 to 5 years and recommended that she be placed in the property offender program at the Correctional Institution for Women in Shakopee. Confinement began on May 6; she was paroled July 29, two weeks after the Stearns County habeas corpus and injunction proceedings. At the time of those proceedings, respondent‘s release date was unknown.
On or about the date of respondent‘s sentencing, she requested that petitioner come to Minnesota to take all the children back to Illinois. By May 23, petitioner had done so. Respondent asserts, however, that petitioner agreed he would exercise his 6-wеek visitation rights as soon as possible and that petitioner came to Minnesota for that purpose only. Furthermore, respondent alleges that petitioner was to return the children to her control by June 13, which he did not do. Respondent demanded their return on June 18. Petitioner contends, on the contrary, that respondent asked petitioner to pick up the oldest child on May 3 and the other children on May 23. He was to keep them in Illinois for the indefinite term of her prison confinement. The
With the children under his control in Illinois, on June 19, petitioner sought relief from the terms of the extant Illinois custody provisiоns by petitioning the Circuit Court for DuPage County, Illinois, for modification of those terms. Respondent received notice of the Illinois hearing and appeared there on July 1. The exact nature and legal consequences of the Illinois hearing and the circumstances attending it are also matters of dispute.
Respondent and her Illinois counsel stipulated to the provisions of an order, issued by the Illinois court on July 1, which essentially granted temporary custody to petitioner; additionally, respondent made a general appearance without contesting the Illinois court‘s power to act.
Among other things, the July 1 order provided that the children remain with рetitioner in Illinois until further order of that court. With respect to the ultimate custody of the children, the court‘s order makes apparent the Illinois court‘s concern about respondent‘s incarceration and her activities preceding it. The court ordered that a copy of the presentence investigation report relating to respondent be furnished and also ordered an investigation of the father for the express purpose of aiding the court in determining the question of custody. A final hearing was set for August 12.
The order allowed petitioner to take the children to Minnesota for a vacation from July 10 to 22. Respondent was granted visitation privileges from 9 a.m. July 11 to 6 p.m. July 12.2 Petitioner
On July 10, however, and proceeding in forma pauperis, respondent instituted the habeas corpus and injunction proceeding in the Stearns County District Court, and also sought a temporary restraining order. Judge Charles Kennedy restrained petitioner from removing the children from Stearns County or from
On July 13, petitioner responded before Judge Paul Hoffman by moving to quash and by petitioning for his own writ of habeas corpus. Oral argument was heard on July 17, at which time Judge Hoffman in substance directed that the temporary restraining order be made a temporary injunction. Without taking testimony and proceeding only on affidavits, the trial court determined that the Illinois court had lacked jurisdiction to affect the custody of the Giblin children and that Minnesota had such jurisdiction. In effect, custody was left in respondent or her agents with limited visitation privileges, since expired, in petitioner. The trial court specifically did not pass on the fitness of either parent. The habeas corpus proceedings were terminated.
On July 30, petitioner sought a writ of prohibition from this court. On July 29, respondent was paroled to her Stearns County residence where she now resides with the children. Subsequent proceedings in Illinois, at which respondent did not appear, resulted in a court order issued in August 1974 granting petitioner permanent custody of the children. On September 26, 1974, our alternative writ issued.
These issues are presented: (1) Whether a petition for writ of prohibition is an appropriate procedural device by which to seek appellate consideration of the main issue raised; (2) whether the lower court failed to give proper effect to the order of the Illinois trial court and by so doing, overstepped and abused its powers; (3) whether the lower court exceeded its authority by failing to require that respondent furnish security prior to receiving equitable relief when respondent was proceeding in forma pauperis.
It is clear that a petition for a writ of prohibition is a
We are not here prepared to say whether the trial court took a correct view of the Illinois order of July 1. Instead, we prefer to remand the question of jurisdiction to the district court for treatment in light of the principles hereinafter enunciated. If that court concludes under the guidelines of this opinion that it need not give effect to the Illinois court order and it is asked to determine which parent should have custody, the district court then should make that difficult decision by using the rules commonly applied in resolving that question.5
“There is growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states. Childrеn of separated parents may live with their mother, for example, but one day the father snatches them and brings them to another state where he petitions a court to award him custody while the mother starts custody proceedings in her state; or in the case of illness of the mother the children may be cared for by grandparents in a third state, and all three parties may fight over the right to keep the children in several states. These and many similar situations constantly arise in our mobile society where family members often are scattered all over the United States and at times over other countries. A young child may have been moved to another state rеpeatedly before the case goes to court. When a decree has been rendered awarding custody to one of the parties, this is by no means the end of the child‘s migrations. It is well known that those who lose a court battle over custody are often unwilling to accept the judgment of the court. They will remove the child in an unguarded moment or fail to return him after a visit and will seek their luck in the court of a distant state where they hope to find — and often do find — a more sympathetic ear for their plea for custody. The party deprived of the child may then resort to similar tactics to recover the child and this ‘game’ may continue for years, with the child thrоwn back and forth from state to state, never coming to rest in one single home and in one community.
“The harm done to children by these experiences can hardly be overestimated. It does not require an expert in the behavioral sciences to know that a child, especially during his early years and the years of growth, needs security and stability of environment and a continuity of affection. A child who has never been given the chance to develop a sense of belonging and whose personal attachments when beginning to form are cruelly disrupted,
may well be crippled for life, to his own lasting detriment and the detriment of society. “This unfortunate state оf affairs has been aided and facilitated rather than discouraged by the law. There is no statutory law in this area and the judicial law is so unsettled that it seems to offer nothing but a ‘quicksand foundation’ to stand on. See Leflar, American Conflicts Law 585 (1968). See also Clark, Domestic Relations 320 (1968). There is no certainty as to which state has jurisdiction when persons seeking custody of a child approach the courts of several states simultaneously or successively. There is no certainty as to whether a custody decree rendered in one state is entitled to recognition and enforcement in another; nor as to when one state may alter a custody decree of a sister state.
“The judicial trend has been toward permitting custody claimants to sue in the courts of almost any state, no matter how fleeting the contact of the child and family was with the particular state, with little regard to any conflict of law rules. See Leflar, American Conflicts Law 585-6 (1968) and Leflar, 1967 Annual Survey of American Law, Conflict of Laws 26 (1968). Also, since the United States Supreme Court has never settled the question whether the full faith and credit clause of the Constitution applies to custody decrees, many states have felt free to modify custody decrees of sister states almost at random although the theory usually is that there has been a change of cirсumstances requiring a custody award to a different person. Compare People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. ed. 1133 (1947); and see Comment, Ford v. Ford: Full Faith and Credit To Child Custody Decrees? 73 Yale L. J. 134 (1963). Generally speaking, there has been a tendency to over-emphasize the need for fluidity and modifiability of custody decrees at the expense of the equal (if not greater) need, from the standpoint of the child, for stability of custody decisions once made. Compare Clark, Domestic Relations 326 (1968).
“Under this state of the law the courts of the various states
have acted in isolation and at times in competition with each other; often with disastrous consequences. A court of one state may have awarded custody to the mother while another state decreed simultaneously that the child must go to the father. See Stout v. Pate, 209 Ga. 786, 75 S. E. 2d 748 (1953) and Stout v. Pate, 120 Cal. App. 2d 699, 261 P. 2d 788 (1953), cert. denied in both cases 347 U.S. 968, 74 S. Ct. 744, 776, 98 L. ed. 1109, 1110 (1954); Moniz v. Moniz, 142 Cal. App. 2d 527, 298 P. 2d 710 (1956); and Sharpe v. Sharpe, 77 Ill. App. 2d 295, 222 N. E. 2d 340 (1966). In situations like this the litigants do not know which court to obey. They may face punishment for contempt of court and perhaps criminal charges for child stealing in one state when complying with the decree of the other. Also, a custody decree made in one state one year is often overturned in another jurisdiction the next year or some years later and the child is handed over to another family, to be repeated as long as the feud continues. See Com. ex rel. Thomas v. Gillard, 203 Pa. Super. 95, 198 A. 2d 377 (1964); In Re Guardianship of Rodgers, 100 Ariz. 269, 413 P. 2d 774 (1966); Berlin v. Berlin, 239 Md. 52, 210 A. 2d 380 (1965); Berlin v. Berlin, 21 N. Y. 2d 371, 235 N. E. 2d 109 (1967), cert. denied [393 U.S. 840, 89 S. Ct. 118, 21 L. ed. 2d 111] (1968); and Batchelor v. Fulcher, 415 S. W. 2d 828 (Ky. 1967). “In this confused legal situation the person who has possession of the child has an enormous tactical advantage. Physical presence of the child opens the doors of many courts to the petitions and often assures him of a decision in his favor. It is not surprising then that custody claimants tend to take the law into their own hands, that they resort to self-help in the form of child stealing, kidnapping, or various other schemes to gain possession of the child. The irony is that persons who are good, law-abiding citizens are often driven into these tactics against their inclinations; and that lawyers who are reluctant tо advise the use of
maneuver of doubtful legality may place their clients at a decided disadvantage.”
See Wheeler v. District Court, 526 P. 2d 658, 660 (Colo. 1974), also involving an Illinois court, and a situation not unlike the one before us, where, the court characterized the act as designed “to eliminate jurisdictional fishing with children as bait.”
Although this court has been long aware of the problems just outlined, those who are compelled or choose to enter our courts in such custody disputes receive little aid from our decisions in anticipating the outcome of their litigation.7 If a decision has already been reached in another jurisdiction which has determined that it has power to act,8 our cases hаve at times failed to give due consideration to the propriety of refusing to recognize that decision and instead reaching a contrary result.
In deciding the matter before us, we do not utilize our prior decisions on the subject. And, in effect, we do not decide the questions of jurisdiction put squarely before us. What we do is to hold that the principles and the appropriate provisions of the Uniform
We regard the Uniform Child Custody Jurisdiction Act as an authoritative statement of the rules currently to be preferred in dealing with the problems encountered in the instant case. Several states have adopted in whole or in part this uniform act,10 and we commend it to the legislature for adoption with such modification as its policy decisions may dictate.
We do not intend to intimate by this opinion that the Illinois court‘s recent orders in this matter should or should not be recognized and given effect by the trial court. The case is remanded so that the trial court may determine that issue based upon findings of fact arrived at after a full evidentiary hearing and by applying the principles and rules enunciated in the uniform act. If it is decided that the recent orders of the Illinois court are to be given effect, then the injunction should be dissolved and the children‘s custody granted to petitioner. Otherwise, the court may continue the injunction at least until such time as the custody issue has been decided by it.
The argument is also made that the lower court acted im-
The bond required by the rule and formerly required by statute is said to be jurisdictional. Bellows v. Ericson, 233 Minn. 320, 40 N. W. 2d 654 (1951). See, also, Independent School Dist. No. 35 v. Oliver Iron Min. Co. 169 Minn. 15, 208 N. W. 952, 210 N. W. 856 (1926); 3 Hetland & Adamson, Minnesota Practice, Civil Rules Ann. p. 157. Cf. Northwest Hotel Corp. v. Henderson, 257 Minn. 87, 100 N. W. 2d 493 (1959); Craigmile v. Sorenson, 241 Minn. 222, 62 N. W. 2d 846 (1954). The first-cited cases, of course, antedate our adoption of the rule. We believe that, in most instances, good and easily recognizable reasons remain for adhering to our earlier statements.
“When not otherwise especially provided by law, the applicant for the writ, before the same issues, shall give a bond in the penal sum of at least $250, * * * ”11
However, Rule 65 superseded this statute to the extent it was inconsistent with the rule, and the quoted language of
Rule 24, Code of Rules for the District Courts, reads:
“Before any restraining order shall be issued, except in aid of writs of execution or replevin, or in actions for divorce, the applicant shall give a bond in the penal sum of at least $1,000, * * *.”
“Any court, other than the supremo court, may adopt rules of court governing its practice; the judges of district courts, pursuant to Minnesota Statutes, Sections 484.52, 484.33 * * * may adopt rules not in conflict with the rules promulgated by the supreme court.”
It might be argued also that Rule 24 itself permitted the district court to require no security because this proceeding falls within the ambit of “actions for divorce.”13 We prefer to base our decision on the ground that, in appreciation of the facts as
The alternative writ is discharged and this matter is remanded for further proceedings consistent with this opinion.
SCOTT, JUSTICE (dissenting).
The majority opinion relies upon the Uniform Child Custody Jurisdiction Act in remanding the question of jurisdiction to the district court. While this reliance is wholly proper, it does not necessitate remanding the matter to the district court. I must dissent and would make the alternative writ of prohibition absolute.
The prefatory note to the Uniform Act specifically states that its purpose is to use the “orderly processes of the law * * * to bring about a fair measure of interstate stability in custody awards.”1 The record before us indicates that petitioner sought in the Illinois court modification of extant Illinois custody provi-
The respondent and her Illinois counsel stipulated to the Ilinois court‘s order of July 1, 1974, which essentially granted temporary custody to the petitioner. Further, by way of general appearance, the respondent submitted to and did not challenge the power of the Illinois court to exercise custody jurisdiction. A final hearing was sсheduled for August 12, 1974, following investigations ordered by the court to aid the court in ultimately determining the custody question. Subsequent proceedings in the Illinois court resulted in the August 1974 order which placed permanent custody in the petitioner.
There have been no challenges here to the adequacy, fairness, or competence of the Illinois court in its conduct of the custody hearings. Rather, all challenges are couched in terms of the lack of jurisdiction. In accordance with the stated purpose of the Uniform Act, and in view also of the general appearance of respondent and her failure to raise the jurisdictional question beforе the Illinois court, I would order that the alternative writ of prohibition be made absolute upon the basis that this court as a matter of comity will recognize the order of the court of a sister state which has undertaken to act in determining custody. Such a decision would be consistent with the general purpose of serving the best interests of the children, would avoid duplicitous actions in an interstate custody dispute, and would lend credence to our oft-stated humane purpose in this field of seemingly never-ending litigation.