On review from the Court of Appeals.
Gary K. Jensen, Eugene, argued the cause for petitioner. On the brief were Gerald D. Gilbert and J. Sidney Armstrong, Eugene.
Edward C. Harms, Jr., Springfield, argued the cause for respondent. With him on the brief were Harms & Harold, Springfield.
This is a habeas corpus proceeding brought by plaintiff to gain the custody of his two daughters, aged three and six years, who at that time were living with defendant, their mother. Defendant appeals from a decree allowing the writ and ordering that the children be delivered to plaintiff, in accordance with the terms of a previous Alabama divorce decree and as required by our decision in Lorenz v. Royer et ux, 194 Or 355, 241 P2d 142, 242 P2d 200 (1952). The Court of Appeals affirmed from the bench, without opinion, 10 Or App 133, 497 P2d 1214 (1972).
Because of the public importance of the problems presented by this case and because of recent developments in the law on this subject since our decision in Lorenz, we granted the petition for review filed by defendant, as the mother of the children.*fn1
In April 1971 defendant separated from plaintiff and filed a complaint for divorce against the plaintiff in this case in Montgomery County, Alabama. Plaintiff then filed an answer and a cross-complaint in that divorce proceeding, to which defendant responded.
In July 1971, before that case was tried, and allegedly "with explicit consent of the father of the children," defendant (the plaintiff in that case), moved with the children from Alabama to Oregon. Defendant also alleges that when the divorce case
was tried she did not appear because she lacked funds to travel from Oregon to Alabama and also lacked funds "to complete payment required of me by my attorney." The Alabama court, after a hearing at which neither defendant nor her counsel was present, entered a decree on October 28, 1971, awarding custody of the children to their father, the plaintiff in this proceeding, which was filed by him on November 18, 1971.
In response to plaintiff's petition for a writ of habeas corpus, demanding delivery of the children to him, defendant contends that "[b]ecause of the voluntary and rightful removal of the Defendant herein and the children herein from the State of Alabama," the circuit court of that state lacked jurisdiction to enter a decree depriving her of the custody of the children, who had been in her rightful custody since birth. Defendant also contends (as held in Lorenz) that "[t]he domicile of a child is the same as the domicile of the parent of the child having rightful custody" and "[t]hat domicile is the State of Oregon." In addition, defendant alleges that she is a fit and proper person to have custody of the children; that "[a]ll parties necessary to an adjudication as to custody are before this court," and that "Alabama allows a change of custody decree to be entered by any Court of competent jurisdiction" and also "holds that Habeas Corpus is an appropriate remedy to determine custody." Finally, defendant contends on this appeal that Lorenz was incorrectly decided and should be overruled.
Plaintiff denies defendant's response to his petition and contends that the sole question to be decided is whether, in view of Lorenz, the Oregon court had jurisdiction and is required to give full faith and credit to the Alabama decree. He also contends that even
though defendant brought the children to Oregon "rightfully" and with plaintiff's consent, nevertheless, because the Alabama court had jurisdiction over the parties it had jurisdiction to enter a decree awarding custody to plaintiff which was entitled to full faith and credit in the courts of Oregon and which also deprived the Oregon court of jurisdiction.
On this record the trial court held that the Alabama court had jurisdiction to award to plaintiff the custody of the children who, according to the rule of Lorenz, were then still "domiciled" in Alabama, and also held, as required by Lorenz, that such a decree was entitled to full faith and credit so as to require delivery of the children to plaintiff and deprive the Oregon court of jurisdiction to do otherwise.
1. Lorenz v. Royer -- Basis for and criticism of "domicile" theory of jurisdiction.
In considering Lorenz it is well to bear in mind both the facts of that case, as well as the basis for that decision. In Lorenz, as in this case, the court in which the divorce proceedings were pending in another state had acquired personal jurisdiction over both parties before one of them removed the children to Oregon and before that court had entered its decree awarding custody to the plaintiff. Indeed, in Lorenz custody of the children had been awarded pendente lite to plaintiff by the Indiana court. The children had then been moved temporarily to the home of defendant's parents in Illinois, with plaintiff's consent, prior to entry of the final decree. After entry of that decree, however, defendant secretly moved the children to Oregon and concealed their whereabouts from plaintiff for nearly three years.
The basis for our decision in Lorenz was that the "temporary removal" of the children to Illinois, with plaintiff's consent, did not defeat the jurisdiction of the Indiana court to award their custody to plaintiff; that the domicile of the children also remained in Indiana, because the domicile of a child follows that of the parent to whose custody it has been awarded; that when such a "status" of a child was "fixed by a court of competent jurisdiction, the decree of such court is entitled to full faith and credit in each state where the question may arise"; that it followed from these facts that the Indiana court had jurisdiction and that the mother's domicile "fixed" that of the children; that because the children were not domiciled in Oregon, the Oregon court "had no * * * jurisdiction" to change their custody to the father, regardless of change of circumstances or other facts; that "[o]ur opinion in this case is based entirely upon a jurisdictional question," and that the Indiana court, "and that court only," had jurisdiction to order a change in custody.*fn2
In support of that decision the court cited decisions by the courts of several other states, as well as Restatement 57, 212, Conflict of Laws §§ 32, 147, among other authorities. The court also expressed the belief in Lorenz (at 381-82) that such a rule would tend to discourage kidnapping and that to hold otherwise would "make this state a mecca for all persons seeking to evade the jurisdiction of the courts of the state of their original domicile."
Since our decision in Lorenz in 1952, both this court and the Court of Appeals have consistently followed the rule as adopted in that case.*fn3 That rule also represented the traditional view on this subject at that time and that which had been adopted by the authors of the first Restatement of Conflicts, as previously
stated.*fn4 Since our decision in Lorenz in 1952, however, that view has been the subject of increasing criticism.*fn5
Perhaps the primary criticism has been that the underlying premise of the traditional "domicile" concept of jurisdiction in child custody cases is erroneous in that custody is not simply a "status."*fn6 If a child is awarded to his mother he is still his father's child; he still has a right of inheritance from his father and his father still owes the child a duty of support. Thus, it is contended that the principal relationship between the custodian and the child is physical, not legal, and is temporary in nature, its only attribute of "status" being that it cannot be changed unilaterally.*fn7
The "domicile" theory is further criticized on the ground that in applying technical rules of domicile, courts often find a domicile that is far removed both logically and factually from the child's actual abode, as well as a forum which has minimal concern with the welfare of the child.*fn8 This criticism is obviously accentuated by today's highly mobile society.
In addition, the United States Supreme Court in May v. Anderson, 345 U.S. 528, 73 S Ct 840, 97 L ed 1221 (1953), held (345 U.S. at 533-34) that at least where a state court does not have personal jurisdiction over the defendant parent, the fact that the child is domiciled in the state of the forum does not give that court requisite jurisdiction to deprive the defendant of his right to custody of the child.*fn9 This decision ...