DocketNumber: File 17924
Citation Numbers: 15 Conn. Super. Ct. 226, 15 Conn. Supp. 226, 1947 Conn. Super. LEXIS 93
Judges: Inglis
Filed Date: 11/12/1947
Status: Precedential
Modified Date: 11/3/2024
This is a habeas corpus proceeding brought by a husband against his wife to determine the custody of their minor child.
The parties were married on February 13, 1943, at Elmira, N. Y., and resided there together until January 20, 1946. On July 20, 1944, a son, John Harold Boardman, the subject of this litigation, was born to them. On January 20, 1946, the plaintiff, being temporarily out of employment because of a strike, brought his wife and child to her parents' home in Norwich. He obtained temporary employment in Norwich and remained there until March 3, 1946. At that time, the strike in Elmira having ended, he returned to that city and resumed his employment there. He has continued to reside in Elmira ever since. At all times since the marriage down to the present time his intention has been to make Elmira his permanent home, and there can be no question but that his domicil ever since the marriage has been at Elmira.
On the day before the plaintiff returned to Elmira the defendant announced that she would refuse to return with him. Ever since then she and the child have resided in Norwich, and it has been her intention to make Norwich her permanent home. *Page 228
On May 2, 1947, the plaintiff instituted an action for separation against the defendant in the Supreme Court of the state of New York in Chemung County, in which Elmira is located. Service of process in that action was not made otherwise than by leaving a copy of the summons and complaint with the defendant at Norwich on May 15, 1947. The defendant made no appearance in that action, and on July 17, 1947, judgment was entered. That judgment decreed among other things that the plaintiff be awarded custody of the minor child as follows: "From the first day of July until the 31st day of December in each year hereafter until said child shall become regularly in attendance in the public schools; during all vacations of more than three days' duration after and during such times as said child may be in regular attendance at the public schools. During all other times, the mother, Shirley F. Boardman, is awarded and shall have the custody of said child." It also directed that, during such times as the child should be in the custody of the mother, the plaintiff should pay $5 per week for the support of the child. There has been no material change in the circumstances of the parties, so far as they have any bearing on the custody of the child since the entry of that judgment.
The custody of the child has not been turned over to the plaintiff in accordance with that judgment of the New York court. The child continues to be with the defendant at the latter's parents home in Norwich. The defendant is employed as an operator by the Southern New England Telephone Company and works six to eight hours a day, so that most of the care of the child falls upon the defendant's mother, Mrs. Elizabeth H. Ulrich. If the plaintiff obtains the actual custody of the child he purposes to turn the care of him over to his mother and father, Mr. and Mrs. N. Harold Boardman, in Elmira, with whom the plaintiff himself now lives. Both the Ulrich and the Boardman homes are good homes in which to bring up the child and in fact are about equally good. The child, however, is of very tender years and, having lived in the Ulrich home for nearly two years, has become completely adjusted there. To remove him to Elmira at this time not only would take him from his mother, who is the one naturally to care for so young a child, but also would be very unsettling to the child. It is concluded therefore that it would be for the best interests of the child for him to continue on with his mother with, of course, the right of reasonable visitation in the plaintiff. *Page 229
That being the conclusion, the question arises whether this court is precluded from entering judgment on that basis by reason of the judgment entered in New York in the separation action. It is of course well settled that under the full faith and credit clause of the United States constitution in cases of this sort, a judgment of the court of a sister state rendered in an action the subject matter of which was within its jurisdiction has the same standing everywhere that it has in the state where it is entered. If, under the law of that state, it is subject to modification, then in any other state it is subject to modification to the same extent. Halvey v. Halvey,
Whether it had such jurisdiction turns on the question whether the domicil of the child was in New York at the time the action was instituted. Restatement, Conflict of Laws § 117. It is, of course, well established that, at common law, the domicil of a legitimate child ordinarily followed that of his father. Restatement, Conflict of Laws, § 30; Yarborough v. Yarborough,
That the adoption of such joint guardianship statutes removes all of the reason for the former rule that the child's domicil follows that of his father is recognized in the Restatement, Conflict of Laws, § 32. That section reads: "The minor child's domicil, in the case of divorce or judicial separation of its parents, is that of the parent to whose custody it has been legally given; if there has been no legal fixing of custody, its domicil is that of the parent with whom it lives." Although it is true that on its face this statement of the law applies only to cases where there has been a divorce or judicial separation, comment a thereunder makes it plain that in substance it is not so limited. That comment says: "By statute in several states the father and mother are constituted ``joint guardians' of their minor children and are equally entitled to their custody. Where that is the case, if the father and mother have separate domicils, a minor child takes the domicil of the parent with whom it lives."
When the reason for a rule of law ceases, then the rule itself ceases. It is therefore concluded that the law now is, in jurisdictions which have adopted the joint guardianship statutes, that, where a mother and father are living separately and each has established a separate domicil, the domicil of their minor legitimate children is at the place of domicil of the parent with whom the children reside. Wear v. Wear,
That being so, the next question to be passed upon is: What was the domicil of the defendant at the time the separation action was instituted? There again we are faced with the old common-law rule that the domicil of the wife ordinarily followed that of her husband. The reason for that rule was, as stated in Torlonia v. Torlonia,
Although no authority has been cited or found directly upon this question, it is clear that the law now is that she may obtain such a domicil. The old fiction of the identity of a married couple is lost. In Connecticut "the law has long recognized the wife as having a separate existence, separate rights and separate interests." Torlonia v. Torlonia,
It is therefore concluded that from and after March 3, 1946, the defendant's domicil was at Norwich in this state and that, the child being with her, the child's domicil was also there both at the time the separation action was started and at the time *Page 232 judgment therein was rendered. It follows that the New York court had no jurisdiction of the subject matter of the separation action insofar as it pertained to the custody of the child. It further follows that the judgment of the New York court on that subject is not binding on this court in this proceeding.
Judgment may enter awarding the custody of the child John Harold Boardman to the defendant, but with the right of reasonable visitation in the plaintiff, and ordering the plaintiff to pay the defendant $5 per week for the support of the child, commencing forthwith.