186 A. 1 | N.H. | 1936
"The jurisdiction of a State to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless . . . . For this, the residence of the child suffices though the domicile be elsewhere." Finlay v. Finlay,
These rules are based upon sound reason and obvious necessity. Were they otherwise, that is if the question of custody could be passed upon only by the courts of the state of the infant's domicile, the temptation would be great to spirit the child beyond reach of the process of that state and thus render the law powerless to cope with the intolerable practice condemned in Gage v. Gage,
The next question presented relates to the jurisdiction of the Superior Court as to the subject-matter. On this point it is argued that the question of custody is within the exclusive jurisdiction of the Probate Court, and that consequently the Superior Court, in giving *226
temporary custody to the infant's maternal grandparents, was acting in a matter over which it had no jurisdiction. While it is true that Leclerc v. Leclerc,
It is further suggested, however, that the court exceeded its jurisdiction in making the statement that "I cannot be unmindful of the fact that a little girl of seven years needs the constant attention which only a mother's love can give and I believe the future welfare of this child requires that she remain in her mother's custody." This is not a permanent award of custody to the mother. It is not a part of the decree at all. It is only an expression of opinion, and as such it is surplusage, without legal or binding effect upon the question of permanent custody. The only actual decree or order which the court made was that which placed the child in the temporary custody of its grandparents.
The plaintiff challenges the authority of the court to make this order upon two grounds. The first of these is that the question of custody is res adjudicata as between the parties by virtue of the decree of the New York court.
The writ of habeas corpus has two principal functions in the law. It may be used for its original purpose of testing the legality of the restraint imposed upon one who has been deprived of his liberty, or it may be used to determine the question of the right to the custody of a minor. When used for the former purpose the doctrine of res adjudicata does not apply. Petition of Moebus,
As appears in the statement of facts the court below carefully adhered to the foregoing rules. His order giving temporary custody to the grandparents was based definitely and exclusively on "evidence of changed circumstances since the New York decree of June 4, 1934." The court, however, went even further and, upon the plaintiff's objection, excluded all evidence of events which occurred prior to that date. This was more than the plaintiff was entitled to. Although the court could not consider such evidence for the purpose of altering, reconsidering, revising or reversing the New York decree, it was necessary for him to consider it on the question of changed circumstances. Unless the original circumstances are before the court it cannot be told whether or not those circumstances have changed.
Furthermore, the rule has long been firmly established in this state that, in questions of custody, the primary consideration is the present and prospective welfare of the child. State v. Scott
It is also competent for the court to consider the character and resources of the parents, their fitness, temperamental and otherwise, *228 for the trust of guardianship and the advantages which may be expected to accrue to the child in the event that custody is given to either of them. On these issues the court may investigate the parent's past conduct as a guide to what may be expected in the future and this investigation into the past is limited, not by the date of some prior decree, but by the application of the broader general rule of remoteness.
The plaintiff's second ground for attack upon the decree is that, in the evidence of changed circumstances, there is nothing to indicate that he has become, since the date of the New York decree, in any way an unfit or improper person to have the custody of his child. This argument proceeds upon the assumption that he is entitled to preferential treatment in the matter of the award of custody over his child. This assumption is erroneous. The mother is the only person entitled to such treatment.
The statute, (P. L., c. 290, s. 4) which makes the parents joint guardians with equal rights over their unmarried minor children does not apply because there is another statute, (P. L., c. 288, s. 9) which gives sole custody to the mother under the precise factual situation presented in the case at bar. The pertinent parts of the statute last cited read as follows: "If a woman, the wife . . . of a citizen of another state, has resided in this state six months successively, separate from her husband, she . . . shall have the exclusive care, custody and guardianship of her minor children living with her in the state . . . ." Construing this statute in harmony with the construction given to P. L., c. 290, s. 4, in Brown v. Jewell,
In the instant case there is no finding that the mother is either unsuitable or unfit for the custody of her daughter, nor is any such finding compelled by the evidence in the record. It follows, then, that the award of custody to the grandparents, though open to attack by the mother, is not open to attack by the father. In the absence of complaint by the mother the order of the superior court must stand. *229
It is suggested, however, that this statute should not be applied because the mother in the case at bar was a wrongdoer in bringing her child into this state in violation of the New York order. This argument is refuted by section 11 of that statute which reads as follows: "If the husband of such woman obtains a divorce from his wife in a court or tribunal of any other state or country, . . . she shall retain the exclusive custody and guardianship and receive the earnings of her minor children living with her." Since obtaining a divorce against her presupposes some breach of marital duty on her part, in other words, some wrongdoing, and since the legislature did not see fit to make such misconduct on her part destructive to her rights of custody and guardianship, the conclusion seems obvious that it was not intended that the act should apply only when the mother's conduct has been blameless. The question is whether any particular item of misconduct on her part is sufficient to render her an unsuitable person to have the custody of her children, and this presents a question for the sound discretion of the court below. It cannot be said that the mother's disobedience of the New York decree is enough to render her unfitted, as a matter of law, to have the custody of her child.
The case of Higgins v. Higgins,
The order of the superior court must, therefore, be sustained, and it must continue in force until such time as the probate court, in conformity with the principles established in this opinion, passes upon the question of permanent guardianship.
Case discharged.
All concurred. *230