Opinion
No. 4739.
Argued June 3, 1959.
Decided June 30, 1959.
1. Where a divorce nisi was granted to the father in a foreign state where the parties were domiciled and custody of their minor children awarded to the mother who thereafter moved with them to this state, a subsequent ex parte decree by the court of the foreign state awarding custody of the children to the father without notice or hearing to the mother was held not to be binding on the courts of this jurisdiction.
2. A petition seeking the enforcement of custody decree awarded in a foreign, jurisdiction was considered as a petition for habeas corpus for the purpose of determining that the Superior Court had authority to issue appropriate temporary orders pertaining to the custody of minor children without regard to the ex parte decree awarded in the foreign state without notice and hearing.
PETITION, by the plaintiff husband, filed July 29, 1958, requesting the Superior Court to order the defendant wife to deliver their three children to the plaintiff in accordance with a custody decree made on July 25, 1958, by a probate court of Massachusetts. The motion also requested that the defendant be enjoined from removing the children from the town of Newfields, New Hampshire, where they were presently located with their mother since July 20, 1958, and this part of the motion was granted by the Superior Court on July 30, 1958. The next week the motion was sent to a master for findings of fact and report and on August 6, 1958, the master filed his report recommending that the children be delivered to the plaintiff "to comply with the decree of the Massachusetts Court on July 25, 1958, which awarded the custody of the three children to the Petitioner."
Following the master's report there was a hearing in the Superior Court and thereafter on September 12, 1958, the Superior Court issued a decree that it had jurisdiction of the motion and that the decree of the probate court of Massachusetts awarding the custody of the children to the father was entitled to full faith and credit. The decree also provided that, pending final determination by the Supreme Court, the children remain with the mother, that the father have reasonable rights of visitation, and the children were not to be removed from this state. The defendant's exceptions to the jurisdiction of the Court and to ruling that full faith and credit should be accorded to the divorce decree of the Massachusetts Court awarding custody of the children to the plaintiff were reserved and transferred by Morris, J.
The husband and wife were domiciled in Massachusetts on June 16, 1958, when the husband was granted a divorce nisi by the Massachusetts probate court and the divorce decree granted custody of the three minor children to the mother. The children had been living with the father from October, 1957, to July, 1958, when the father took them to visit the mother. On July 20, 1958, the mother moved to Newfields, New Hampshire, taking the children with her. On July 25, 1958, the Massachusetts Court modified its divorce decree in an ex parte order and granted custody to the father. Four days later the father filed the motion in the New Hampshire Superior Court seeking to enforce the Massachusetts decree as outlined above.
Sleeper Mullavey and Edward E. Williams (Mr. Williams orally), for the plaintiff.
Shaines Brown (Mr. Shaines orally), for the defendant.
The extent to which custody orders of minor children in divorce decrees in one state are entitled to full faith and credit under the United States Constitution, Article IV, Section 1, as implemented by 28 U.S.C.A., s. 1738, in another state is a question attended with uncertainty and somewhat at large. There are different rationales and recommended solutions without any uniform basis for decision as can be seen from the principal and concurring opinions in New York ex rel Halvey v. Halvey, 330 U.S. 610, and the principal, concurring and dissenting opinions in May v. Anderson, 345 U.S. 528. See Hazard, May v. Anderson: Preamble to Family Law Chaos, 45 Va. L. Rev. 379 (1959); Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Mich. L. Rev. 345 (1953); Note, 56 Col. L. Rev. 630 (1956). "The United States Supreme Court decision in Kovacs v. Brewer [ 356 U.S. 604 (1957)] does little to clarify the uncertainties which characterize the problem of successive custody awards in different states . . . As the case was left, each opinion inferred, without deciding, that in some circumstances a custody decree may be entitled to full faith and credit elsewhere. The rest is left to the future." Leflar, Conflict of Laws, 1958 Annual Survey of American Law, as reported in 34 N.Y.U.L. Rev. 47, 48 (1959).
Whatever rule may emerge as the definitive one in determining successive custody awards in different states, we are not required to predict it or delineate it in broad strokes for the purpose of deciding the present custody dispute. See Comment, Full Faith and Credit: Extraterritorial Effect of Custody Decrees, 13 U. Miami L. Rev. 101 (1958); anno. 9 A.L.R. (2d) 434.
For the reasons hereinafter stated, we are of the opinion that under the facts and circumstances of the present case, the Trial Court was in error in entering a decree in favor of the plaintiff on the sole basis of according full faith and credit to the Massachusetts custody decree.
The ex parte decree awarding custody to the father without notice or hearing to the mother is not binding on the courts of this jurisdiction. The custody of the children resident here was to be determined by the laws of this state. Hanrahan v. Sears, 72 N.H. 71, 72; Brown v. Jewell, 86 N.H. 190. The primary consideration is the present and prospective welfare of the children. Sheehy v. Sheehy, 88 N.H. 223. The record does not indicate that these matters were considered by the Court in arriving at its decision.
Treating the present petition as one in the nature of a petition for habeas corpus, the Superior Court has authority to issue appropriate temporary orders pertaining to the custody of these children. Sheehy v. Sheehy, supra.
Remanded.
All concurred.