After a man and wife had been married in New York, had a child
born there, and had lived there seven years, the wife took the
child to Florida without the husband's consent and established a
residence there. The next year, she instituted suit for divorce in
Florida. Service of process on the husband was had by publication,
and he made no appearance. The Florida court granted the wife a
divorce and awarded her permanent care, custody, and control of the
child, but, the day before the decree was granted, the husband took
the child to New York without the knowledge or approval of the
wife. The wife instituted habeas corpus proceedings in New York,
challenging the legality of the detention of the child. The New
York court ordered (1) that the custody of the child remain with
the mother, (2) that the father have rights of visitation,
including the right to keep the child with him during stated
vacation periods each year, and (3) that the mother give a surety
bond conditioned on the delivery of the child in Florida for
removal by the father to New York for the period when he was
entitled to keep it with him.
Held: the order of the New York court did not fail to
give the Florida decree the full faith and credit required by
Article IV, § 1 of the Constitution. Pp.
330 U. S.
612-616.
(a) Under Florida law, custody decrees of Florida courts
ordinarily are not
res judicata in Florida or elsewhere,
except as to facts before the court at the time of judgment. Pp.
330 U. S.
612-613.
(b) The Florida court would have been empowered to modify the
decree in the interests of the child and to grant the father the
right of visitation, had he applied to it, rather than the New York
court, and presented his version of the controversy for the first
time in his application for modification of the Florida decree. Pp.
330 U. S.
613-614.
(c) So far as the Full Faith and Credit Clause of the
Constitution is concerned, what Florida can do in modifying the
decree, New York also may do. Pp.
330 U. S.
614-615.
295 N.Y. 836, 66 N.E.2d 851, affirmed.
Page 330 U. S. 611
A Florida court having granted a divorce and awarded custody of
a child to a mother, and the child having been removed to New York
by the father without the mother's consent, the mother instituted
habeas corpus proceedings in New York. The New York court ordered(
1) that the custody of the child remain with the mother, (2) that
the father have rights of visitation, including the right to keep
the child with him during stated vacation periods each year, and
(3) that the mother give a surety bond conditioned on delivery of
the child in Florida for removal by the father to New York for the
periods when he was entitled to keep it with him. 185 Misc. 52, 55
N.Y.S.2d 761. Both the Appellate Division, 269 App.Div. 1019, 59
N.Y.S.2d 396, and the Court of Appeals affirmed, 295 N.Y. 836, 66
N.E.2d 851. This Court granted certiorari. 329 U.S. 697.
Affirmed, p.
330 U. S.
616.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The Halveys were married in 1937, and lived together in New York
until 1944. In 1938, a son was born. Marital troubles developed. In
1944, Mrs. Halvey, without her husband's consent, left home with
the child, went to Florida, and established her residence there. In
1945, she instituted a suit for divorce in Florida. Service of
process on Mr. Halvey was had by publication, he making no
appearance in the action. The day before the Florida decree was
granted, Mr. Halvey, without the knowledge or approval of his wife,
took the child back to New York. The
Page 330 U. S. 612
next day, the decree was entered by the Florida court granting
Mrs. Halvey a divorce and awarding her the permanent care, custody,
and control of the child.
Thereupon she brought his habeas corpus proceeding in the New
York Supreme Court challenging the legality of Mr. Halvey's
detention of the child. After hearing, the New York court ordered
(1) that the custody of the child remain with the mother; (2) that
the father have rights of visitation including the right to keep
the child with him during stated vacation periods in each year, and
(3) that the mother file with the court a surety bond in the sum of
$5,000, conditioned on the delivery of the child in Florida for
removal by the father to New York for the periods when he had the
right to keep the child with him. 185 Misc. 52, 55 N.Y.S.2d 761.
Both the Appellate Division, 269 App.Div. 1019, 59 N.Y.S.2d 396,
and the Court of Appeals, 295 N.Y. 836, 66 N.E.2d 851, affirmed
without opinion. The case is here on a petition for a writ of
certiorari which we granted because it presented an important
problem under the Full Faith and Credit Clause of the Constitution.
Article IV, § 1.
The custody decree was not irrevocable and unchangeable; the
Florida court had the power to modify it at all times. [
Footnote 1] Under Florida law, the
"welfare of the child" is the "chief consideration" in shaping the
custody decree or in subsequently modifying or changing it.
Frazier v. Frazier, 109 Fla. 164, 169, 147 So. 464, 466;
see Phillips v. Phillips, 153 Fla. 133, 134, 135, 13 So.
2d 922, 923.
Page 330 U. S. 613
But
"the inherent rights of parents to enjoy the society and
association of their offspring, with reasonable opportunity to
impress upon them a father's or a mother's love and affection in
their upbringing, must be regarded as being of an equally
important, if not controlling, consideration in adjusting the right
of custody as between parents in ordinary cases."
Frazier v. Frazier, 109 Fla. at 169, 147 So. at 466.
Facts which have arisen since the original decree are one basis for
modification of the custody decree.
Frazier v. Frazier,
109 Fla. at 168, 147 So. at 464;
Jones v. Jones, 156 Fla.
524, 23 So. 2d 623, 625. But the power is not so restricted. It was
held in
Meadows v. Meadows, 78 Fla. 576, 83 So. 392, 393,
that
"the proper custody of the minor child is a proper subject for
consideration by the chancellor at any time, even if facts in issue
could have been considered at a previous hearing,
if such facts
were not presented or considered at a former hearing."
(Italics added.) Or, as stated in
Frazier v. Frazier,
109 Fla. at 168, 147 So. at 465, a custody decree
"is not to be materially amended or changed afterward, unless on
altered conditions shown to have arisen since the decree, or
because of material facts bearing on the question of custody and
existing at the time of the decree, but which were unknown to the
court, and then only for the welfare of the child."
The result is that custody decrees of Florida courts are
ordinarily not
res judicata, either in Florida or
elsewhere, except as to the facts before the court at the time of
judgment.
Minick v. Minick, 111 Fla. 469, 490, 491, 149
So. 483, 492.
Respondent did not appear in the Florida proceeding. What
evidence was adduced in that proceeding bearing on the welfare of
the child does not appear. But we know that the Florida court did
not see respondent, nor hear evidence presented on his behalf
concerning his fitness
Page 330 U. S. 614
or his claim "to enjoy the society and association" of his son.
Frazier v. Frazier, 109 Fla. at 169, 147 So. at 469. It
seems to us plain, therefore, that, under the rule of
Meadows
v. Meadows, supra, the Florida court would have been empowered
to modify the decree in the interests of the child and to grant
respondent the right of visitation if he had applied to it, rather
than to the New York court, and had presented his version of the
controversy for the first time in his application for
modification.
So far as the Full Faith and Credit Clause is concerned, what
Florida could do in modifying the decree, New York may do. Article
IV, § 1 of the Constitution provides that
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and Judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in
which such acts, Records and Proceedings shall be proved, and the
Effect thereof."
Congress, by the Act of May 26, 1790, c. 11, as amended, R.S. §
905, 28 U.S.C. § 687, declared that judgments
"shall have such faith and credit given to them in every court
within the United States as they have by law or usage in the courts
of the State from which they are taken."
The general rule is that this command requires the judgment of a
sister State to be given full, not partial, credit in the the
forum.
See Davis v. Davis, 305 U. S.
32;
Williams v. North Carolina, 317 U.
S. 287. But a judgment has no constitutional claim to a
more conclusive or final effect in the the forum than it has in the
State where rendered.
See Reynolds v. Stockton,
140 U. S. 254,
140 U. S. 264.
If the court of the State which rendered the judgment had no
jurisdiction over the person or the subject matter, the
jurisdictional infirmity is not saved by the Full Faith and Credit
Clause.
See Thompson v.
Whitman, 18 Wall. 457;
Griffin v. Griffin,
327 U. S. 220. And
if the amount payable under a decree -- as in
Page 330 U. S. 615
the case of a judgment for alimony -- is discretionary with the
court which rendered it, full faith and credit does not protect the
judgment.
Sistare v. Sistare, 218 U. S.
1,
218 U. S. 17.
Whatever may be the authority of a State to undermine a judgment of
a sister State on grounds not cognizable in the State where the
judgment was rendered (
cf. Williams v. North Carolina,
325 U. S. 226,
325 U. S.
230), it is clear that the the forum has at least as
much leeway to disregard the judgment, to qualify it, or to depart
from it as does the State where it was rendered.
In this case, the New York court, having the child and both
parents before it, had a full hearing and determined that the
welfare of the child and the interests of the father warranted a
modification of the custody decree. It is not shown that the New
York court, in modifying the Florida decree, exceeded the limits
permitted under Florida law. There is therefore a failure of proof
that the Florida decree received less credit in New York than it
had in Florida.
The narrow ground on which we rest the decision makes it
unnecessary for us to consider several other questions argued --
e.g., whether Florida, at the time of the original decree,
had jurisdiction over the child, [
Footnote 2] the father having removed him from the State
after the proceedings started but before the decree was entered;
whether, in absence of personal service the Florida decree of
custody had any binding effect on the husband; whether the power of
New York to modify the custody decree was greater
Page 330 U. S. 616
than Florida's power; whether the State which has jurisdiction
over the child may, regardless of a custody decree rendered by
another State, make such orders concerning custody as the welfare
of the child from time to time requires. On all these problems, we
reserve decision.
Affirmed.
MR. JUSTICE JACKSON concurs in the result on the ground that the
record before us does not show jurisdiction in the Florida
court.
[
Footnote 1]
"In any suit for divorce or alimony, the court shall have power
at any stage of the cause to make such orders touching the care,
custody, and maintenance of the children of the marriage, and what,
if any, security to be given for the same, as from the
circumstances of the parties and the nature of the case may be fit,
equitable and just, and such order touching their custody as their
best spiritual as well as other interests may require."
Fla.Stats.1941, § 65.14.
[
Footnote 2]
The legal domicile of the child is usually the domicile of his
father.
Minick v. Minick, 111 Fla. at 490, 149 So. at 483;
Dorman v. Friendly, 146 Fla. 732, 738, 1 So. 2d 734, 736.
The power of the Florida courts to award custody of a child is
dependent either on the child's being legally domiciled in Florida
or physically present there.
Dorman v. Friendly, supra; State
ex rel. Clark v. Clark, 14, Fla. 452, 4 So. 2d 517.
MR. JUSTICE FRANKFURTER, concurring.
Conflicts arising out of family relations raise problems and
involve considerations very different from controversies to which
debtor-creditor relations give rise. Such cardinal differences in
life are properly reflected in law. And so, the use of the same
legal words and phrases in enforcing full faith and credit for
judgments involving the two types of relations ought not to
obliterate the great difference between the interests affected by
them, and should not lead to an irrelevant identity in result.
The constitutional policy formulated by the Full Faith and
Credit Clause cannot be fitted into tight little categories or too
abstract generalities. That policy was the nationwide restriction
of litigiousness, to the extent that States, autonomous for certain
purposes, should not be exploited to permit repetitive litigation.
In substance, the Framers deemed it against the national welfare
for a controversy that was truly litigated on one State to be
relitigated in another. Such limitation does not foreclose inquiry
into what was litigated and what was adjudicated. The scope of the
Full Faith and Credit Clause is bounded by its underlying policy,
and not by procedural considerations unrelated to it. Thus, in
judgments affecting domestic relations, technical questions of
"finality" as to alimony and custody seem to me irrelevant
Page 330 U. S. 617
in deciding the respect to be accorded by a State to a valid
prior judgment touching custody and alimony rendered by another
State.
See the concurring opinion in
Barber v.
Barber, 323 U. S. 77,
323 U. S. 86,
and the dissenting opinions in
Griffin v. Griffin,
327 U. S. 220, at
327 U. S. 236
and
327 U. S. 248.
Compare Yarborough v. Yarborough, 290 U.
S. 202.
Which brings me to the present case. If there were no question
as to the power of Florida to provide for the custody of this child
in the manner in which the Florida decree of divorce did, I think
New York would have to respect what Florida decreed, unless changed
conditions affecting the welfare of the child called for a change
in custodial care. New York could respond to such changed
circumstances. The child's welfare must be the controlling
consideration whenever a court which can actually lay hold of a
child is appealed to on behalf of the child. Short of that, a valid
custodial decree by Florida could not be set aside simply because a
New York court, on independent consideration, has its own view of
what custody would be appropriate.
Here, the lower New York court did not provide for the child's
custody on the basis of changed circumstances. While it professed
to respect the Florida custody decree, the court acted as though it
had independent authority because of the dispersion of the family.
Its action seemed to be controlled by the father's right, on the
assumption that that was the test of the child's welfare in the
circumstances. The order of the lower court was affirmed by the
Appellate Division, but that court specifically noted that it did
"not adopt in their entirety the views expressed" by the court
below. The intermediate tribunal was, in turn, affirmed by the
Court of Appeals. Of course, if the Florida decree is entitled to
no respect, it is not for us to upset the custodial provisions
sanctioned by the highest court of New York. Although we are not
afforded the guidance that an opinion would give as to
Page 330 U. S. 618
the considerations that moved the New York Court of Appeals to
sustain the custodial decree, on the slim record before us, I am
not justified in finding that the New York Court of Appeals was
unmindful of its duty under the Full Faith and Credit Clause to
respect a valid Florida judgment.
In determining whether the New York judgment should stand or
fall, account must be taken of two competing considerations. There
is first the presumptive jurisdiction of the court of a sister
State -- here, Florida -- to render the judgment for which full
faith and credit is asked. The other is the power of a State court
-- here, New York -- which has actual control of the child to make
provision for the child's welfare. Where, as here, both
considerations cannot prevail, one must yield. Since the
jurisdiction of the Florida court in making the custodial decree is
doubtful, New York was justified in exercising its power in the
interest of the child.
Williams v. North Carolina,
325 U. S. 226.
A close analysis of the precise issue before us seems to me to
require this conclusion. T he problem before this Court is the
validity of New York judgment providing for the custody of a child
subject to its jurisdiction because within its power. It is our
duty to sustain that judgment unless there is clear ground for
upsetting it. Apart from the effect of what Florida had previously
done, New York's authority to enter this judgment is unquestioned.
New York's power is qualified only by her duty under the Full Faith
and Credit Clause to respect a Florida judgment. But this duty
arises only if there was legal power in the Florida Court to enter
the custodial decree, and if, in the Florida courts themselves, the
decree was not subject to the kind of modification which New York
here made. On the basis of the meager record before us, and in view
of the uncertainties of Florida law, we do not have the necessary
assurance that Florida had jurisdiction to issue the
Page 330 U. S. 619
custodial decree, or that the Florida courts could not enter a
modifying decree precisely like the New York decree before us. So
long as there is this uncertainty, we are not justified in finding
that New York's judgment was vitiated because of a failure in her
duty under the Full Faith and Credit Clause. A full record of the
Florida proceedings in the light of applicable Florida law, more
securely ascertained than by our independent inquiry, might lead to
a different conclusion. As it is, I concur in affirmance of the
judgment.
MR. JUSTICE RUTLEDGE, concurring.
I join in the judgment
dubitante in the view that,
under Florida law,
res judicata has no application to an
award of custody, [
Footnote 2/1]
and the decree therefore is lacking in any qualify of finality
which would prevent the court rendering it, or another acquiring
jurisdiction of the child's status, from altering it. [
Footnote 2/2]
The result seems unfortunate in that, apparently, it may make
possible a continuing round of litigation over custody, perhaps
also of abduction, between alienated parents. That consequence
hardly can be thought conducive to the child's welfare. And, if
possible, I would avoid such
Page 330 U. S. 620
a distressing result, since I think that the controlling
consideration should be the best interests of the child not only
for disposing of such cases as a matter of local policy, as it is
in Florida and New York, [
Footnote
2/3] but also for formulating federal policies of full faith,
and credit as well as of jurisdiction and due process in relation
to such dispositions.
I am not sure but that the effect of the decision may be that
the mother, once the child has been returned to Florida, [
Footnote 2/4] will then be able to secure
another decree there nullifying the father's rights of visitation
and custody given by the New York decree, [
Footnote 2/5] or that, in such an event, he might
lawfully repeat the abduction and secure restoration of those
rights in New York. If so, the effect of the decision may be to set
up an unseemly litigious competition between the states and their
respective courts, as well as between parents. Sometime, somehow,
there should be an end to litigation in such matters.
But our function here is limited to application of the full
faith and credit clause. I agree that technical notions
Page 330 U. S. 621
of finality applied generally to other types of judgment for
such purposes have no proper strict application to these decrees.
[
Footnote 2/6] But, even so, full
faith and credit is concerned with finality, and only with
finality, when the question arises in relation to the binding
effects of judgments. And the law is clearly settled that, while
generally the clause requires other states to give judgments as
much effect as they have where rendered, it does not require them
to give more. [
Footnote 2/7]
Accordingly, if the state rendering the judgment gives it no
final effect to prevent its alternation, I am unable to see how
others having jurisdiction of the parties and the subject matter
may be required to give it finality in this respect by virtue of
the provision for full faith and credit. [
Footnote 2/8] But this is what we would have to require,
in view of the state of Florida law, in order to hold that New York
could not make the changes which were incorporated in its
judgment.
Whether Florida will be bound to observe those changes, in the
event of another application by Mrs. Halvey, is a question upon
which, however, I desire to reserve judgment, along with the other
questions reserved in the Court's opinion.
[
Footnote 2/1]
In
Minick v. Minick, 111 Fla. 469, 491, 149 So. 483,
492, the Florida Supreme Court quoted with approval the statement
in Schouler on Marriage and Divorce (6th ed.) § 1896:
"These judgments [of custody] are necessarily provisional and
temporary in character, and are ordinarily not
res
judicata, either in the same court or that of a foreign
jurisdiction, except as to facts before the court at the time of
the judgment."
See also Meadows v. Meadows, 78 Fla. 576, 83 So.
392.
[
Footnote 2/2]
The trial court in New York gave lip service to observing the
Florida award of custody to the mother, but awarded the father
rights "of visitation" not allowed under the Florida decree, and
these included not only visitation during specified hours while the
child is to remain in the mother's custody, but also the right to
have the custody during more than three months of each year, during
which time the mother was given specified visiting rights. The New
York appellate courts affirmed the award as made by the trial
court.
[
Footnote 2/3]
See Fla.Stat.Ann. § 65.14;
Jones v. Jones, 156
Fla. 524, 527, 23 So. 2d 623;
Green v. Green, 137 Fla.
359, 361, 188 So. 355.
See Matter of Rich v. Kaminsky, 254 App.Div. 6, 3
N.Y.S.2d 689;
Matter of Bull, 266 App.Div. 290, 42
N.Y.S.2d 53,
aff'd, 291 N.Y. 792, 53 N.E.2d 368;
see
also N.Y.Domestic Relations Law, c. 14, § 70;
Finlay v.
Finlay, 240 N.Y. 429, 433, 148 N.E. 624.
[
Footnote 2/4]
The New York judgment permits the mother to take the child to
Florida during the time she is to have custody,
see
330
U.S. 610fn2/2|>note 2, but requires her to give a surety
bond conditioned upon her surrendering the child to the father at
the beginning of the periods prescribed for his having custody.
The mother therefore, consistently with the New York decree, may
lawfully remove the child to Florida. Once he is physically and
lawfully present there, it would seem that the courts of that state
would be able to acquire jurisdiction over his status and to make
further awards concerning it, unless indeed personal service of
process upon the father is required for that purpose.
[
Footnote 2/5]
See notes
330
U.S. 610fn2/2|>2,
330
U.S. 610fn2/4|>4. The question would remain whether the
Florida courts, by making a further decree, could relieve the
mother of the compulsion of the surety bond.
[
Footnote 2/6]
See the opinion dissenting in part in
Griffin v.
Griffin, 327 U. S. 220, at
327 U. S. 247;
also the concurring opinion in
Barber v. Barber,
323 U. S. 77, at
323 U. S.
86.
[
Footnote 2/7]
Rev.Stat. § 905, 28 U.S.C. § 687, and cases cited in
Griffin
v. Griffin, 327 U. S. 220,
327 U. S. 236,
note 1
[
Footnote 2/8]
Commentators who have suggested that full faith and credit be
given to custody decrees have assumed that such awards could be
modified only on the basis of new facts occurring subsequent to the
original custody decree.
See, e.g., Effect of Custody
Decree in a State Other Than Where Rendered (1933), 81 U.Pa.L.Rev.
970, 972. As the opinion of the Court points out, the power of
Florida to modify such a decree is not limited to change of
circumstance.
See also 330
U.S. 610fn2/1|>note 1.