In a habeas corpus proceeding attacking the right of a mother to
retain possession of her minor children, an Ohio court is not bound
by the Full Faith and Credit Clause of the Federal Constitution to
give effect to a Wisconsin decree awarding custody of the children
to their father, when that decree was obtained by the father in an
ex parte divorce action in a Wisconsin court that had no
personal jurisdiction over the mother. Pp.
345 U. S.
528-535.
157 Ohio St. 436, 105 N.E.2d 648, reversed.
In a habeas corpus proceeding to test the right as between a
father and mother to immediate possession of their minor children,
the Ohio trial court ordered the children discharged from further
restraint by the mother. The State Court of Appeals affirmed. 91
Ohio App. 557, 107 N.E.2d 358. The State Supreme Court dismissed an
appeal. 157 Ohio St. 436, 105 N.E.2d 648 On appeal to this Court,
the appeal is treated as a petition for a writ of certiorari,
certiorari is granted, and the judgment is
reversed and
remanded, p.
345 U. S.
535.
MR. JUSTICE BURTON delivered the opinion of the Court.
The question presented is whether, in a habeas corpus proceeding
attacking the right of a mother to retain possession of her minor
children, an Ohio court must give full faith and credit to a
Wisconsin decree awarding custody of the children to their father
when that decree is obtained by the father in an
ex parte
divorce action in
Page 345 U. S. 529
a Wisconsin court which had no personal jurisdiction over the
mother. For the reasons hereafter stated, our answer is no.
This proceeding began July 5, 1951, when Owen Anderson, here
called the appellee, filed a petition for a writ of habeas corpus
in the Probate Court of Columbiana County, Ohio. He alleged that
his former wife, Leona Anderson May, here called the appellant, was
illegally restraining the liberty of their children, Ronald,
Sandra, and James, aged, respectively, 12, 8 and 5, by refusing to
deliver them to him in response to a decree issued by the County
Court of Waukesha County, Wisconsin, February 5, 1947. With both
parties and their children before it, the Probate Court ordered
that, until this matter be finally determined, the children remain
with their mother subject to their father's right to visit them at
reasonable times.
After a hearing "on the petition, the stipulation of counsel for
the parties as to the agreed statement of facts, and the
testimony," the Probate Court decided that it was obliged by the
Full Faith and Credit Clause of the Constitution of the United
States [
Footnote 1] to accept
the Wisconsin decree as binding upon the mother. Accordingly,
proceeding to the merits of the case upon the issues presented by
the stipulations of counsel, it ordered the children discharged
from further restraint by her. That order has been held in
abeyance, and the children are still with her. The Court of Appeals
for Columbiana County, Ohio, affirmed. 91 Ohio App. 557, 107 N.E.2d
358. The Supreme Court of Ohio, without opinion, denied a motion
directing the Court of Appeals to certify
Page 345 U. S. 530
its record for review, and dismissed an appeal on the ground
that no debatable constitutional question was involved. 157 Ohio
St. 436, 105 N.E.2d 648.
On appeal to this Court, we noted probable jurisdiction.
Inasmuch, however, as neither the Court of Appeals nor the Supreme
Court of Ohio relied upon the Ohio statute alleged to be the basis
of the appeal, we have treated the appeal as a petition for a writ
of certiorari, granted pursuant to 28 U.S.C. (Supp. V) § 2103,
while continuing, for convenience, to refer to the parties as
appellant and appellee. [
Footnote
2]
The parties were married in Wisconsin and, until 1947, both were
domiciled there. After marital troubles developed, they agreed in
December, 1946, that appellant should take their children to
Lisbon, Columbiana County, Ohio, and there think over her future
course. By New Year's Day, she had decided not to return to
Wisconsin, and, by telephone, she informed her husband of that
decision.
Within a few days, he filed suit in Wisconsin, seeking both an
absolute divorce and custody of the children. The only service of
process upon appellant consisted of the delivery to her personally,
in Ohio, of a copy of the Wisconsin summons and petition. Such
service is authorized
Page 345 U. S. 531
by a Wisconsin statute for use in an action for a divorce, but
that statute makes no mention of its availability in a proceeding
for the custody of children. [
Footnote 3] Appellant entered no appearance and took no
part in this Wisconsin proceeding, which produced not only a decree
divorcing the parties from the bonds of matrimony, but a decree
purporting to award the custody of the children to their father,
subject to a right of their mother to visit them at reasonable
times. Appellant contests only the validity of the decree as to
custody.
See Estin v. Estin, 334 U.
S. 541, and
Kreiger v. Kreiger, 334 U.
S. 555, recognizing the divisibility of decrees of
divorce from those for payment of alimony.
Armed with a copy of the decree and accompanied by a local
police officer, appellee, in Lisbon, Ohio, demanded and obtained
the children from their mother. The record does not disclose what
took place between 1947 and 1951, except that the children remained
with their father in Wisconsin until July 1, 1951. He then brought
them
Page 345 U. S. 532
back to Lisbon and permitted them to visit their mother. This
time, when he demanded their return, she refused to surrender
them.
Relying upon the Wisconsin decree, he promptly filed in the
Probate Court of Columbiana County, Ohio, the petition for a writ
of habeas corpus now before us. Under Ohio procedure, that writ
tests only the immediate right to possession of the children. It
does not open the door for the modification of any prior award of
custody on a showing of changed circumstances. Nor is it available
as a procedure for settling the future custody of children in the
first instance.
"It is well settled that habeas corpus is not the proper or
appropriate action to determine, as between parents, who is
entitled to the custody of their minor children."
"The agreed statement of facts disclosed to the Court of Appeals
that the children were in the custody of their mother. There being
no evidence that the appellant had a superior right to their
custody, that court was fully warranted in concluding that the
children were not illegally restrained of their liberty."
In re Corey, 145 Ohio St. 413, 418, 61 N.E.2d 892,
894-895. [
Footnote 4]
The narrow issue thus presented was noted but not decided in
Halvey v. Halvey, 330 U. S. 610,
330 U. S.
615-616. There, a mother instituted a suit for divorce
in Florida. She obtained service on her absent husband by
publication,
Page 345 U. S. 533
and he entered no appearance. The Florida court granted her a
divorce, and also awarded her the custody of their child. There
was, therefore, inherent in that decree the question "whether, in
absence of personal service, the Florida decree of custody had any
binding effect on the husband. . . ."
Id. at
330 U. S. 615.
We were not compelled to answer it there, and a decision on it was
expressly reserved.
Separated as our issue is from that of the future interests of
the children, we have before us the elemental question whether a
court of a state where a mother is neither domiciled, resident nor
present may cut off her immediate right to the care, custody,
management, and companionship of her minor children without having
jurisdiction over her
in personam. Rights far more
precious to appellant than property rights will be cut off if she
is to be bound by the Wisconsin award of custody.
"[I]t is now too well settled to be open to further dispute that
the 'full faith and credit' clause and the act of Congress passed
pursuant to it [
Footnote 5] do
not entitle a judgment
in personam to extraterritorial
effect if it be made to appear that it was rendered without
jurisdiction over the person sought to be bound."
Baker v. Baker, Eccles & Co., 242 U.
S. 394,
242 U. S. 401,
and see 242 U. S. 403;
Thompson v.
Whitman, 18 Wall. 457;
D'Arcy v.
Ketchum, 11 How. 165.
In
Estin v. Estin, supra, and
Kreiger v. Kreiger,
supra, this Court upheld the validity of a Nevada divorce
obtained
ex parte by a husband, resident in Nevada insofar
as it dissolved the bonds of matrimony. At the same time, we held
Nevada powerless to cut off, in that proceeding, a spouse's right
to financial support under the
Page 345 U. S. 534
prior decree of another state. [
Footnote 6] In the instant case, we recognize that a
mother's right to custody of her children is a personal right
entitled to at least as much protection as her right to
alimony.
In the instant case, the Ohio courts gave weight to appellee's
contention that the Wisconsin award of custody binds appellant
because, at the time it was issued, her children had a technical
domicile in Wisconsin, although they were neither resident nor
present there. [
Footnote 7] We
find it unnecessary to determine the children's legal domicile
because, even if it be with their father, that does not give
Wisconsin, certainly as against Ohio, the personal jurisdiction
that it must have in order to deprive their mother of her personal
right to their immediate possession. [
Footnote 8]
Page 345 U. S. 535
The judgment of the Supreme Court of Ohio, accordingly, is
reversed, and the cause is remanded to it for further proceedings
not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE CLARK, not having heard oral argument, took no part
in the consideration or decision of this case.
[
Footnote 1]
"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."
Art. IV, § 1.
[
Footnote 2]
The state statute alleged to have been drawn in question by
appellant as repugnant to the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States was § 7996 of
the Ohio General Code of 1910, providing that "The husband is the
head of the family. He may choose any reasonable place or mode of
living, and the wife must conform thereto." The Probate Court was
said to have upheld that section as establishing the legal domicile
of the children with their father, and, on that basis, to have
upheld the Wisconsin decree as validly depriving their mother of
her custody over her children, although the Wisconsin court never
obtained personal jurisdiction over her.
[
Footnote 3]
"262.12
Publication or service outside state, when
permitted. When the summons cannot with due diligence be
served within the state, the service of the summons may be made
without the state or by publication upon a defendant when it
appears from the verified complaint that he is a necessary or
proper party to an action or special proceeding as provided in Rule
262.13, in any of the following cases:"
"
* * * *"
"(5) When the action is for a divorce or for annulment of
marriage."
"
* * * *"
"262.13
Publication or service outside state; . . . mode of
service."
"
* * * *"
"(4) In the cases specified in Rule 262.12 the plaintiff may at
his option and in lieu of service by publication, cause to be
delivered to any defendant personally without the state a copy of
the summons and verified complaint or notice of object of action as
the case may require, which delivery shall have the same effect as
a completed publication and mailing. . . ."
Wis.Stat., 1949.
[
Footnote 4]
This limitation contrasts with the procedure in states where a
court, upon securing the presence before if of the parents and
children in response to a writ of habeas corpus, may proceed to
determine the future custody of the children.
See e.g., Halvey
v. Halvey, 330 U. S. 610 (New
York procedure);
Boor v. Boor, 241 Iowa 973,
43 N.W.2d 155;
Helton v. Crawley, 241 Iowa 296,
41 N.W.2d
60.
[
Footnote 5]
See 28 U.S.C. (Supp. V) § 1738, as developed from the
Act of May 26, 1790, 1 Stat. 122.
[
Footnote 6]
". . . The fact that the requirements of full faith and credit,
so far as judgments are concerned, are exacting, if not inexorable
(
Sherrer v. Sherrer, supra,
[334 U.S. 343)], does not mean, however, that the the domicile of
one spouse may, through the use of constructive service, enter a
decree that changes every legal incidence of the marriage
relationship."
"
* * * *"
"The result in this situation is to make the divorce divisible
-- to give effect to the Nevada decree insofar as it affects
marital status, and to make it ineffective on the issue of
alimony."
334 U.S. at
334 U. S. 546,
334 U. S.
549.
[
Footnote 7]
By stipulation, the parties recognized her domicile in Ohio.
See also Estin v. Estin, supra; Kreiger v. Kreiger, supra;
Williams v. North Carolina, 317 U. S. 287.
For the general rule that, in cases of the separation of
parents, apart from any award of custody of the children, the
domicile of the children is that of the parent with whom they live,
and that only the state of that domicile may award their custody,
see Restatement, Conflict of Laws (1934), §§ 32 and 146,
Illustrations 1 and 2.
[
Footnote 8]
". . . the weight of authority is in favor of confining the
jurisdiction of the court in an action for divorce, where the
defendant is a nonresident and does not appear, and process upon
the defendant is by substituted service only, to a determination of
the status of the parties. . . . This rule of law extends to
children who are not within the jurisdiction of the court when the
decree is rendered, where the defendant is not a resident of the
state of the seat of the court, and has neither been personally
served with process nor appeared to the action. [Citing
cases.]"
"By the authority of the cases
supra, a decree of the
custody of a minor child under the circumstances stated is
void."
Weber v. Redding, 200 Ind. 448, 454-455, 163 N.E. 269,
271.
See also Sanders v. Sanders, 223 Mo. App. 834,
837-838, 14 S.W.2d 458, 459-460;
Carter v. Carter, 201 Ga.
850, 41 S.E.2d 532.
The instant case does not present the special considerations
that arise where a parent, with or without minor children, leaves a
jurisdiction for the purpose of escaping process or otherwise
evading jurisdiction, and we do not have here the considerations
that arise when children are unlawfully or surreptitiously taken by
one parent from the other.
MR. JUSTICE FRANKFURTER, concurring.
The views expressed by my brother JACKSON make it important that
I state, in joining the Court's opinion, what I understand the
Court to be deciding and what it is not deciding in this case.
What is decided -- the only thing the Court decides -- is that
the Full Faith and Credit Clause does not require Ohio, in
disposing of the custody of children in Ohio, to accept, in the
circumstances before us, the disposition made by Wisconsin. The
Ohio Supreme Court felt itself so bound. This Court does not decide
that Ohio would be precluded from recognizing, as a matter of local
law, the disposition made by the Wisconsin court. For Ohio to give
respect to the Wisconsin decree would not offend
Page 345 U. S. 536
the Due Process Clause. Ohio is no more precluded from doing so
than a court of Ontario or Manitoba would be, were the mother to
bring the children into one of these provinces.
Property, personal claims, and even the marriage status,
see, e.g., Sherrer v. Sherrer, 334 U.
S. 343, generally give rise to interests different from
those relevant to the discharge of a State's continuing
responsibility to children within her borders. Children have a very
special place in life which law should reflect. Legal theories, and
their phrasing in other cases readily leads to fallacious reasoning
if uncritically transferred to determination of a State's duty
towards children. There are, of course, adjudications other than
those pertaining to children, as for instance, decrees of alimony,
which may not be definitive even in the decreeing State, let alone
binding under the Full Faith and Credit Clause. Interests of a
State other than its duty towards children may also prevail over
the interest of national unity that underlies the Full Faith and
Credit Clause. But the child's welfare in a custody case has such a
claim upon the State that its responsibility is obviously not to be
foreclosed by a prior adjudication reflecting another State's
discharge of its responsibility at another time. Reliance on
opinions regarding out-of-State adjudications of property rights,
personal claims, or the marital status is bound to confuse analysis
when a claim to the custody of children before the courts of one
State is based on an award previously made by another State.
Whatever light may be had from such opinions, they cannot give
conclusive answers.
MR. JUSTICE JACKSON, whom MR. JUSTICE REED joins,
dissenting.
The Court apparently is holding that the Federal Constitution
prohibits Ohio from recognizing the validity of
Page 345 U. S. 537
this Wisconsin divorce decree insofar as it settles custody of
the couple's children. In the light of settled and unchallenged
precedents of this Court, such a decision can only rest upon the
proposition that Wisconsin's courts had no jurisdiction to make
such a decree binding upon appellant.
Baker v. Baker, Eccles
& Co., 242 U. S. 394,
242 U. S. 401;
Esenwein v. Commonwealth, 325 U.
S. 279,
325 U. S.
281.
A conclusion that a state must not recognize a judgment of a
sister commonwealth involves very different considerations than a
conclusion that it must do so. If Wisconsin has rendered a valid
judgment, the Constitution not only requires every state to give it
full faith and credit, but 28 U.S.C. § 1738, referring to such
judicial proceedings, commands that they
"shall have the same full faith and credit in every court within
the United States and its Territories and Possessions as they have
by law or usage in the courts of such State, Territory or
Possession from which they are taken. [
Footnote 2/1]"
The only escape from obedience lies in a holding that the
judgment rendered in Wisconsin, at least as to custody, is void,
and entitled to no standing even in Wisconsin. It is void only if
it denies due process of law.
The Ohio courts reasoned that, although personal jurisdiction
over the wife was lacking, domicile of the children in Wisconsin
was a sufficient jurisdictional basis to enable Wisconsin to bind
all parties interested in their custody. This determination that
the children were domiciled in Wisconsin has not been contested
either at our bar or below. Therefore, under our precedents, it is
conclusive.
Williams v. North Carolina, 317 U.
S. 287,
317 U. S. 302.
The husband, plaintiff in the case, was at all times domiciled in
Wisconsin; the defendant wife was a Wisconsin native,
Page 345 U. S. 538
was married there, and both were domiciled in that State until
her move in December, 1946, when the parties stipulate that she
acquired an Ohio domicile. The children were born in Wisconsin,
were always domiciled there, and were physically resident in
Wisconsin at all times until December, 1946, when their mother took
them to Ohio with her. But the Ohio court specifically found that
she brought the children to Ohio with the understanding that, if
she decided not to go back to Wisconsin the children were to be
returned to that State. In spite of the fact that she did decide
not to return, she kept the children in Ohio. It was under these
circumstances that the Wisconsin decree was rendered in February,
1947, less than two months after the wife had given up her physical
residence in Wisconsin and held the children out of the State in
breach of her agreement.
The husband subsequently went to Ohio, retrieved the children,
and took them back to Wisconsin, where they remained with him for
four years. Then he voluntarily brought them to Ohio for a visit
with their mother, whereupon she refused to surrender them, and he
sought habeas corpus in the Ohio courts. In this situation,
Wisconsin was no meddler reaching out to draw to its courts
controversies that arose in and concerned other legal communities.
If ever domicile of the children plus that of one spouse is
sufficient to support a custody decree binding all interested
parties, it should be in this case. [
Footnote 2/2]
Cf. Yarborough v. Yarborough,
290 U. S. 202,
290 U. S.
210.
I am quite aware that, in recent times, this Court has been
chipping away at the concept of domicile as a connecting factor
between the state and the individual to
Page 345 U. S. 539
determine rights and obligations. [
Footnote 2/3] We are a mobile people, historically on
the move, and perhaps the rigid concept of domicile derived by
common law from feudal attachment to the land is too rigid for a
society so restless as ours. But if our federal system is to
maintain separate legal communities, as the Full Faith and Credit
Clause evidently contemplates, there must be some test for
determining to which of these a person belongs. If, for this
purpose, there is a better concept than domicile, we have not yet
hit upon it. Abandonment of this ancient doctrine would leave
partial vacuums in many branches of the law. It seems to be
abandoned here.
The Court's decision holds that the state in which a child and
one parent are domiciled and which is primarily concerned about his
welfare cannot constitutionally adjudicate controversies as to his
guardianship. The state's power here is defeated by the absence of
the other parent for a period of two months. The convenience of a
leave-taking parent is placed above the welfare of the child, but
neither party is greatly aided in obtaining a decision. The
Wisconsin courts cannot bind the mother, and the Ohio courts cannot
bind the father. A state of the law such as this, where possession
apparently is not merely nine points of the law, but all of them,
and self-help the ultimate authority, has little to commend it in
legal logic or as a principle of order in a federal system.
Nor can I agree on principle with the Court's treatment of the
question of personal jurisdiction of the wife. I agree with its
conclusion, and that of the Ohio courts, that Wisconsin never
obtained jurisdiction of the person of the appellant in this
action, and therefore the jurisdiction
Page 345 U. S. 540
must be rested on domicile of the husband and children.
Cf.
Milliken v. Meyer, 311 U. S. 457. And
I have heretofore expressed the view that such personal
jurisdiction is necessary in cases where the domicile is obviously
a contrived one or the claim of it a sham.
Williams v. North
Carolina, supra, at
317 U. S. 311;
Rice v. Rice, 336 U. S. 674,
336 U. S. 676.
But here, the Court requires personal service upon a spouse who
decamps before the good faith domicile can make provision for
custody and support of the children still legally domiciled within
it. Wisconsin had a far more real concern with the transactions
actions here litigated than have many of the divorce mill forums
whose judgments we have commanded their sister states to
recognize.
In spite of the fact that judges and law writers long have
recognized the similarity between the jurisdictional requirements
for divorce and for custody, [
Footnote
2/4] this decision appears to equate the jurisdictional
requirements for a custody decree to those for an
in
personam money judgment. One reads the opinion in vain to
discover reasons for this choice, unless it is found in the remark
that, for the wife, "rights far more precious than property will be
cut off" in the custody proceeding. The force of this cardiac
consideration is self-evident, but it seems to me to reflect a
misapprehension as to the nature of a custody proceeding or a
revision of the views that have heretofore prevailed. When courts
deal with inanimate property by the conventional
in rem
proceeding, their principal concern is the distribution of rights
in that property, rather than with the welfare of the property
apart from its ownership claims. But, even where dealing solely
with property rights, where concern with the "
res" is
minimal and concern with the claimants is paramount,
Page 345 U. S. 541
courts may exercise jurisdiction
in rem over the
property without having personal jurisdiction over all of the
claimants. [
Footnote 2/5] Only when
they seek to render a party liable to some personal performance
must they acquire personal jurisdiction. [
Footnote 2/6]
The difference between a proceeding involving the status,
custody, and support of children and one involving adjudication of
property rights is too apparent to require elaboration. In the
former, courts are no longer concerned primarily with the
proprietary claims of the contestants for the "
res" before
the court, but with the welfare of the "
res" itself.
Custody is viewed not with the idea of adjudicating rights in the
children, as if they were chattels, but rather with the idea of
making the best disposition possible for the welfare of the
children. To speak of a court's "cutting off" a mother's right to
custody of her children, as if it raised problems similar to those
involved in "cutting off" her rights in a plot of ground, is to
obliterate these obvious distinctions. Personal jurisdiction of all
parties to be affected by a proceeding is highly desirable, to make
certain that they have had valid notice and opportunity to be
heard. But the assumption that it overrides all other
considerations, and, in its absence, a state is constitutionally
impotent to resolve questions of custody, flies in the face of our
own cases. The wife's marital ties may be dissolved without
personal jurisdiction over her by a state where the husband has a
genuine domicile because the concern of that state with the welfare
and marital status of its domiciliary is felt to be sufficiently
urgent. Certainly the claim of the domiciled parent to relief for
himself from the leave-taking parent does not exhaust the power of
the state. The claim of
Page 345 U. S. 542
children as well as the homekeeping parent to have their status
determined with reasonable certainty, and to be free from an
incessant tug of war between squabbling parents, is equally
urgent.
The mother in this case would, in all probability, not be
permanently precluded from attempting to redetermine the custody of
the children. If the Wisconsin courts would allow modification of
the decree upon a showing of changed circumstances, such
modification could be accomplished by another state which acquired
jurisdiction over the parties.
Halvey v. Halvey,
330 U. S. 610;
cf. Lynde v. Lynde, 181 U. S. 183.
And, of course, no judgment settling custody rights as between the
parents would itself prevent any state which may find itself
responsible for the welfare of the children from taking action
adverse to either parent. No such case is before us.
I fear this decision will author new confusions. The
interpretative concurrence, if it be a true interpretation, seems
to reduce the law of custody to a rule of "seize and run." I would
affirm the decision of the Ohio courts that they should respect the
judgment of the Wisconsin court, until it or some other court with
equal or better claims to jurisdiction shall modify it.
[
Footnote 2/1]
None of the cases involving exceptions to this rule is in point
here.
See, e.g., Fall v. Eastin, 215 U. S.
1.
[
Footnote 2/2]
American Law Institute, Restatement, Conflict of Laws, 1934, §§
117, 144-147.
[
Footnote 2/3]
Cf. Curry v. McCanless, 307 U.
S. 357;
State Tax Commission v. Aldrich,
316 U. S. 174; the
Dorrance litigation, 298 U.S. 678;
In re Dorrance's
Estate, 115 N.J.Eq. 268, 170 A. 601, 309 Pa. 151, 163 A.
303.
[
Footnote 2/4]
See Goodrich, "Custody of Children," 7 Corn.L.Q. 1.
[
Footnote 2/5]
Harris v. Balk, 198 U. S. 215;
Thompson v.
Whitman, 18 Wall. 457.
[
Footnote 2/6]
Pennoyer v. Neff, 95 U. S. 714.
MR. JUSTICE MINTON, dissenting.
The opinion of the Court and the dissent of MR. JUSTICE JACKSON
deal with a jurisdictional question not raised on the record.
As I understand the law of Ohio,
"parents are the legal and natural custodians of their minor
children, and each parent has an equal right to their custody in
the absence of an order, judgment, or decree of a court of
competent jurisdiction fixing their custody. Section 8032, General
Code. It is well settled that habeas corpus is not the proper or
appropriate action to determine, as between parents, who is
entitled to the custody of their minor
Page 345 U. S. 543
children."
In re Corey, 145 Ohio St. 413, 418, 61 N.E.2d 892,
894-895.
The instant case was a proceeding in Ohio by habeas corpus
brought by the father against the mother for the possession of the
minor children. The father could not succeed in this habeas corpus
action unless he could show that he had an order of a court of
competent jurisdiction awarding him the custody of the children. He
produced an authenticated copy of a decree of the County Court of
Waukesha County, Wisconsin, valid on its face and unappealed from,
which awarded him the custody of the children. It is not contended
that this decree is void upon its face, nor did appellant, the
mother, challenge its validity in Ohio by any responsive pleading
to the petition for habeas corpus.
The only question before the Ohio court was whether that court
should give full faith and credit to the Wisconsin decree. That
unappealed decree was valid on its face, and its validity was not
attacked by any pleading. The validity of the decree is not
affected by any admission in this case, on or off the record. As
far as this record is concerned, the decree of the Wisconsin court
was what it purported to be on its face. Since appellant failed to
challenge its validity by any pleading, the decree was entitled to
full faith and credit in Ohio under Art. IV, § 1 of the United
States Constitution. The Ohio court properly accorded the decree
full faith and credit, and it was evidence, together with
parenthood, which proved the father's right to possession of the
children and entitled him to succeed in the proceeding.
I would therefore affirm.