Citation Numbers: 27 N.J. Super. 251
Filed Date: 9/10/1953
Status: Precedential
Modified Date: 7/25/2022
This appeal presents only the issue, has the Superior Court jurisdiction of the subject matter?
The complaint shows that the plaintiff, Mrs. Munson, is the aunt of an infant, Daniel Johnston, who was born in
Mrs. Johnston moved to dismiss for lack of jurisdiction and, upon denial of the motion, appealed. She argues that the court has no jurisdiction since the infant is actually in Massachusetts.
The domicile of a child follows the domicile of the father or, if he be dead, the domicile of the mother. In re Russell, 64 N. J. Eq. 313 (Prerog. 1902). The circumstance that a third party, Mrs. Newman, has removed the child from the State does not affect the child’s domicile, although it might be otherwise if the child were removed with the mother’s consent and with the understanding that the child would reside out of the State permanently, or for a prolonged, though indefinite, period. Because of the child’s domicile, we are satisfied that the court has jurisdiction of custody as between the aunt and the mother. In re Williams, 77 N. J. Eq. 478 (Ch. 1910). We do not attempt to consider what weight a final judgment in this action would receive in the event of litigation in Massachusetts. While Mrs. Newman is named as a defendant in the complaint, she has not appeared or been served.
Order affirmed.