Opinion
Decided January 2, 1934.
Upon a decree of divorce and the award of the custody of a minor to a third person with the right of both parents to visit the child, an application of the libelee, the wife, to take the child with her on a trip to a foreign country was properly denied as jeopardizing the father's right of visitation. In the customary comity of states and nations orders for custody of minors are recognized only so long as the circumstances attending their adoption remain unchanged.
MOTION, by the libelee in a divorce suit for leave to take her minor son to France.
On May 12, 1930, a divorce was granted the libelant on the ground of extreme cruelty. The custody of the child in question was awarded the libelee. The libelant was permitted to have the child with him for short periods. A month after the divorce, the libelee procured a passport to France for herself and son. On discovery of this fact the libelant petitioned the court to bring forward the case and to modify the order of custody. This the court did, awarding custody to the libelant's mother.
On December 30, 1932, on motion of the libelee, this order was vacated and custody committed to the matron of the Protestant Orphanage in Nashua. Both the libelant and the libelee were given the right to see the child subject to the rules and regulations of that institution.
On May 17, 1933, the libelee moved that she be permitted to take her son to France "this summer" under such terms and conditions as the court might deem best. The libelant opposed the granting of this motion on the ground that the court as a matter of law had no right to permit the child to be taken out of the state, and "Because it would be an unreasonable infringement of the father's right to see and visit the child, and though the granting of the motion would ostensibly make this unreasonable infringement a temporary matter, nevertheless, no order could provide any guarantee that such infringement would not be permanent." The questions of law raised by these objections were transferred by Burque, J., without a ruling.
Thorp Branch (Mr. Thorp orally), for the libelant.
Ivory C. Eaton, for the libelee.
Although the time referred to in the motion has expired, the question transferred has been considered, since it is understood that the motion has been informally renewed.
Assuming that the courts of France on principles of comity would hold that the libelee has no power to change the child's domicile and that in legal theory the courts of this state would continue in control of the status, even though the child should remain in France, it by no means follows that in the event of an actual contest the rights of either the father or the present custodian would there receive effective recognition.
The transferred case contains no reference to the laws of France, but by the weight of authority in this country a foreign guardian may be refused possession of his ward if the welfare of the child so requires. Hanrahan v. Sears, 72 N.H. 71; Beale, "The Status of the Child and the Conflict of Laws," 1 U. Chi. Law Rev., 13, 26, and cases cited. Moreover, upon proof that a custodian is unfit, "the child may be taken from him and be given to another person by the courts of any state into which the child may have come." Butler v. Butler, 83 N.H. 413, 415. See also Cowles v. Cowles, 80 N.H. 530, 532; White v. White, 77 N.H. 26.
Different courts not infrequently hold different views as to what constitutes fitness for guardianship and what best conserves the interests of a child, and though the facts upon which an award of custody is based are so far res adjudicata that they cannot be reexamined in another jurisdiction, "this estoppel extends only to conditions, which existed at the time of the original decree." 1 U. Chi. Law Rev. 24. Changed circumstances make new or modified orders necessary, and it is significant that the superior court has twice changed the original order of custody in this case.
"The utmost which is asserted for the extraterritorial effect of such orders is that they should, in the exercise of the customary comity of States and nations, be recognized and enforced . . . so long, and only so long, as the circumstances attending their adoption remain unchanged . . . As a finding of changed conditions is one easily made when a court is so inclined, and plausible grounds therefor can quite generally be found, it follows that the recognition extraterritorially which custody orders will receive or can command is liable to be more theoretical than of great practical consequence." Morrill v. Morrill, 83 Conn. 479, 492, 493.
The fact that the libelee has already attempted to take her son to France without leave of court cannot but cast doubt upon her professed willingness to conform to such terms and conditions as the court may now impose. The libelant's right to have access to his son is an important right (Butler v. Butler, 83 N.H. 413, 416), and should not be jeopardized except for reasons touching the welfare of the child.
On the reported facts the motion should be denied.
Case discharged.
BRANCH, J., did not sit: the others concurred.