Commonwealth Ex Rel. Rogers v. Daven

The municipal court held no hearing on the merits in this case; it gave no consideration to the question, whether the permanent welfare and best interest of these young children, four and six years old respectively, would be better promoted by sending them back to the boarding-house keeper in Asheville N.C., a total stranger, in whose custody they had been placed by the juvenile court of Buncombe County, N.C., or by letting them remain with their aunt, Mrs. Daven, in Philadelphia, with whom they and their mother have been living since they came north in November, 1927. The entire hearing in the court below was devoted to an inquiry as to whether the decree entered by the juvenile court of Buncombe County was a valid and legal one, the judge of the municipal court apparently taking it for granted that if a legal decree was so entered in North Carolina, it must be enforced in this State under the clause of the Federal Constitution (Art. IV, Sec. 1) providing that "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State."

It has been decided, however, in a number of states, among them North Carolina, that the paramount issue in a habeas corpus proceeding for the custody of children is the best interests and welfare of the children and as these may be affected by a change of conditions and circumstances, and as the relationship of parent and child is a status, not a property right, that the decree of a court of a sister state does not have the same binding force and effect in a proceeding for the custody of children that it does with respect to a money judgment or a decree affecting property.

Perhaps the leading, or most frequently cited, case on the subject is In re Petition of Frank B. Bort, 25 Kansas 308, (1881), where the father of two children, four and five years old, respectively, applied for a writ of habeas corpus against their mother for their possession. The petitioner relied on a decree of a circuit court of Wisconsin entered in a divorce action January 26, 1881, awarding him the custody of the children. When the action was begun both parties resided within the jurisdiction of that court. Shortly afterwards Mrs. Bort took her children and came to Leavenworth to live with her parents. The Supreme Court of Kansas, speaking through Mr. Justice BREWER, afterwards of the Supreme Court of the United States, repudiated the doctrine that the full faith and credit clause of the Federal Constitution applied in a proceeding for the custody of children, as if the parents had "some property rights in the possession of their children," and said: "Where the custody of the children is the question, the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents, and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests." After stating that the conduct of the mother since the divorce seemed to have been without reproach, the court proceeded: "Whatever may be her faults, it is evident that the children will receive only the kindest care if left in their present home. They are of that tender age when they need a mother's care. No stranger, however kind, can fill her place. We may not ignore these universal laws of our nature, and they compel us to place these children where they will be within reach of a mother's love and care." The court awarded the children to their grandmother, Mrs. Powers, mother of Mrs. Bort.

This case has been cited in numerous proceedings of a similar character, and was followed by the Supreme Court of Kansas in Avery v. Avery, 33 Kans. 1, 5 P. 419, 422, where it was said: "The decree committing the care and custody of this minor child to her mother only determined the right of the parties inter sese, and therefore was not erroneous or without jurisdiction. The decree in no manner concludes other courts as to the best interests of the child: In re Bort, 25 Kansas 308."

In Hanrahan v. Sears, 72 N.H. 71, 54 A. 702 (1903) the Supreme Court of New Hampshire disregarded the decree of a Vermont court saying: "Upon all the evidence, the Superior Court should determine the question whether the child's welfare will be best promoted by taking her from her relatives with whom she has lived for many years and for whom she may have feelings of filial regard and placing her in the custody of the relator, an officer appointed under the law of Vermont."

In Woodworth v. Spring, 4 Allen (Mass.) 321, (1862), BIGELOW, C.J., speaking for the Supreme Judicial Court said: "The decree of the probate court [of Illinois appointng petitioner in present habeas proceedings guardian of the child] does not deprive this court of the power to adjudicate and determine the question of the proper custody of the child as between a domestic guardian and one appointed in the place of the domicile of the infant...... It is for the court to determine, in the exercise of a sound judicial discretion, having regard to the welfare and permanent good of the child as a predominant consideration, to whose custody he shall be committed."

In Aufder Heide v. Kiskaddon, 79 Okla. 6, 190 P. 859 (1920), the Supreme Court of Oklahoma following the Bort case held that a decree of the circuit court of Gasconade County, Missouri, awarding two minor children to the custody of their father was not conclusive on the courts of Oklahoma "at this time by reason of the change of situation and circumstances affecting the children's welfare and proper custody, occurring since the decree was rendered;" and that whenever the possession and custody of minor children is sought by habeas corpus proceedings the court will make such order for their care and custody as the best interests of the children may require.

In Allen v. Allen 105 N.Y. 628, 11 N.E. 143, (1887), the court of appeals approved the decision of the Supreme Court in the same case (40 Hun 611), awarding a child to its mother in consonance with a decree of a county court in Illinois, but said: "The court below, upon a view of all the existing facts relating to the welfare and interest of the infants, exercised their discretion in awarding to the mother the custody of the children; and in so doing gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it."

In Calkins v. Calkins, 217 Ala. 378, 115 So. 866 (1928), the Supreme Court of Alabama followed the Bort case, and disregarding the decree of a court in Tennessee, awarded the custody of the child to its mother.

In Wilson v. Elliott, 73 S.W. 946, (Texas, 1903), the Supreme Court approved the language of Bishop on Marriage and Divorce, that "The true rule in the state of its rendition is that it is res judicata, concluding the question. But it does not conclude the question for all time since new facts may create new issues. Nor since the relation of parent and child is a status, rightfully, like marriage, regulated by any state in which the parties are domiciled, does the order in one state operate as an estoppel of all future inquiry in the courts of another where the child has acquired a domicile."

In Cox v. Cox, 214 S.W. 627 (Texas, 1919), where the appellant relied on the judgment and final decree of the chancery court of Mississippi awarding him, as against his wife, the care, custody and possession of two minor children of tender years, the court of civil appeals of Texas said: "The paramount issue in proceedings of this character is whether or not the best interest of the minor demands that its care and custody should be taken from one person and committed to that of another; ...... the fact, if established, that at the date of the Mississippi judgment, April 9, 1918, appellant was the proper person to whom to commit the custody of the children, and that it was then for the best interests of the children that they be committed to him, would not deprive the district court of Texas, before whom this proceeding was instituted, of the power of determining whether it was then, viz., September 30, 1918, for the best interest and welfare of said children that their custody and control should remain with the father."

In Jernigan v. Garrett, 155 Ga. 390, 117 S.E. 327 (1923), where a decree of a New Hampshire court awarding Mrs. Jernigan the custody of her child was introduced in an adoption proceeding in the Superior Court of Chatham County, Georgia, the Supreme Court of that state held that the decree of the New Hampshire Court awarding the custody of the child to Mrs. Jernigan did not preclude action by the Superior Court upon the question of awarding the child to the applicant; that under the full faith and credit provision of the Constitution of the United States the decree did place the custody and control of the child in Mrs. Jernigan at the time at which the decree was rendered; but that evidence showing changed conditions and that Mrs. Jernigan had become an improper person to have charge and custody of the child would authorize the award of its custody to another person.

In no case was this right of a court to disregard the judgment or decree of a court of another state relating to the custody of a child, and decide the question solely on the ground of its best interests and welfare, more strongly and forcibly presented than by the Supreme Court of North Carolina in re Hugh Alderman,157 N.C. 507, 73 S.E. 126 (1911), whose juvenile court is now insisting that its decree must be enforced in this State. In that case petitioner and respondent, father and mother of the child, were divorced in Florida at the instance of the respondent and a decree entered awarding her the general custody of the child but directing that the father should be allowed to visit the child at such time as to his wife might seem reasonable and that the child might visit the father "at such time and under such circumstances and conditions as are reasonable and expedient, and said child may at least be permitted to visit W.F. Alderman [the father] for two weeks at a time ...... if W.F. Alderman so desires." The respondent removed with the child to North Carolina and the petitioner brought these proceedings to enforce the decree of the Florida court as to his partial custody of the child. The court said: "If the language used were compulsory in its terms, that clause of the decree is not such a judgment of another state which the courts of this State are bound to enforce." The opinion cites with approval In re Bort, supra; Avery v. Avery, supra; and Wilson v. Elliott, supra, and holds in effect, that a judgment of a court of a sister state awarding the custody of a child to the wife obtaining a divorce has no extraterritorial effect ...... that the child on coming to North Carolina is not under the control of the courts of the sister state, and such judgment is not entitled to full faith and credit, and in a combat for the custody of the child the courts of North Carolina are governed only by what is for the best interests of the child.

I think that decision correctly states the law; that decrees awarding the custody of children are not property judgments but relate to matters concerned only with the welfare of the children and are subject to change and modification as their interests require, and have no extra-territorial effect beyond that allowed by the court of appeals of New York in Allen v. Allen, supra, "as a fact or circumstance bearing upon the discretion to be exercised."

In the present case it appears that Mrs. Bryant prior to her marriage was a resident of Philadelphia; that her husband, a naval officer, shortly after their marriage developed tuberculosis, and they removed to Asheville, N.C., on account of his health. For sometime he has been confined in a sanatorium for tubercular patients. Mrs. Bryant and the two children lived in a house in that place. A proceeding was instituted in the juvenile court to take the children from their mother, on the ground that by reason of her intimacy with a man living in Asheville she was not a fit person to take care of them, and after a "hearing," at which no testimony was taken, but merely on the strength of a prior conversation between the judge and Mrs. Bryant, the juvenile court on July 14, 1927, awarded the children to a boarding-house keeper in Asheville, not related to any of the parties, with directions that they should be taken to the sanatorium to see their father every day and that the mother should be allowed to see them once a week. While in my opinion the "hearing" was not a hearing as generally understood, yet Mrs. Bryant was present when the decree was entered and took no appeal. She was concluded by it. In November, 1927, Mrs. Bryant brought the children to Philadelphia and placed them in the custody of her aunt, Mrs. Daven, with whom she and they have been living ever since.

There is no evidence that the misconduct with the man in Asheville, which caused the court there to act, has continued since Mrs. Bryant's removal to Philadelphia.

Her aunt, with whom she and the children live, is admittedly a woman of high character, who would take good care of these young children.

The municipal court should have heard evidence on the present status and condition of the children and adjudged whether their welfare and interest would be better served by leaving them in the care and custody of Mrs. Daven, or their mother, in Philadelphia, or by returning them to the unrelated boarding-house keeper in Asheville to whom the juvenile court of Buncombe County awarded them.

As the municipal court did not pass on that question, the vital issue in the case, I would reverse the order and remit the record to that court to hear and determine into whose custody it is for the best interest and welfare of the children that they should be given.

We are not concerned in this proceeding with any contempt of which Mrs. Bryant may have been guilty in removing the children to Philadelphia.

CUNNINGHAM, J., joins in this dissent.