Opinion
May 10, 1949.
Present — Peck, P.J., Glennon, Cohn, Callahan and Van Voorhis, JJ. [See post, p. 823.]
In view of the Nevada judgment of divorce between these parties, awarding custody of the children to petitioner, who is a resident of California, and the subsequent unsuccessful application by respondent Marianne Teitelbaum to obtain a modification of said judgment in that respect, we consider that the forcible removal of these children from California to New York without the consent of petitioner ought not to result in an adjudication in the Supreme Court of New York State directing a change in custody. This writ of habeas corpus is sustained and the custody of the children awarded to petitioner, but without passing upon whether the Nevada judgment would operate as res judicata against respondent Marianne Teitelbaum in a proceeding relative to the custody of the children in the courts of California. Order unanimously affirmed and the custody of the children awarded to petitioner.