Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Plaintiff filed this action in the Chancery Division September 24, 1954, seeking an award of custody of two minor children born of her marriage with the defendant, her former husband. She appeals from a judgment in that cause entered November 7, 1956, awarding custody of the children to the defendant rather than to her.
These parties were married in Virginia but came to live in New Jersey, where both of their children, a daughter now aged ten and a son aged six, were born. At all times since, the husband and both children have been residents and domiciliaries of this State. The parties entered into a formal separation agreement October 7, 1953 embodying a property and support settlement, retention of the Westfield home by the defendant, and the vesting of "sole custody and control" of the children in the husband, subject to renegotiation "in the event the situation of either of the parties * * * shall change in the future." The agreement was to be incorporated in any divorce decree or judgment to be made by any court having jurisdiction.
Thereupon, by cooperative arrangement between the parties, plaintiff went to Reno, Nevada, where a judgment of divorce was entered November 30, 1953, dissolving the marriage. The judgment approved the separation agreement, including the provision for custody of the children, but the court reserved jurisdiction over the matter of custody and support of the children. Plaintiff became a permanent resident of Nevada, becoming employed, as she still is, as an assistant in a gambling casino in Reno. In the summer of 1954 plaintiff asked defendant to surrender the children to her and she came East for them. Upon his refusal, she instituted this action. In the latter part of June 1955 defendant permitted plaintiff to take the children to Reno for a five-week visit, as expressly stipulated in the separation agreement. On July 18, 1955, while she still had the children, she filed a motion with the Nevada court for modification of the judgment so as to vest custody in her, and, at the same time, obtained an order restraining the taking of the
children by defendant. Defendant's counsel was apprised of the restraint, but, prior to its service on defendant, he flew to Reno and picked the children up on the street August 16, 1955, without the knowledge of plaintiff, and brought them back to their New Jersey home.
The hearing on the modification application was held by the Nevada court December 2, 1955. The defendant appeared by counsel, who cross-examined three witnesses for plaintiff and submitted a defense witness. This was a private investigator, who only furnished proofs regarding the physical surroundings of the house in which plaintiff lived. There was apparently no evidence before the court concerning the circumstances under which the children were being reared and cared for by defendant in New Jersey nor as to plaintiff's character and activities prior to the divorce. Neither defendant nor the children were on hand at the hearing. On December 5, 1955 the Nevada court modified the judgment to grant custody to plaintiff, and thereafter plaintiff amended her complaint in the New Jersey action to set forth the modified Nevada judgment and to pray its enforcement by the Superior Court.
At the trial in the Chancery Division there was a thorough airing of the background of the parties and of their activities material to the issue of comparative fitness to exercise custody over the children and upon the question of their welfare and best interests. The legal issues raised on the present appeal by the plaintiff do not include the merits of the determination by the trial court that the defendant is better able to take care of the children than the plaintiff and that the welfare of the children will be better served by leaving them in the care of the father, who has obviously done a remarkably good custodial job with them thus far with the aid of housekeepers, than by uprooting them from their familiar school, church and neighborhood environment and sending them to live in Reno with a mother who works irregular night hours in a gambling casino. It is appropriate, in passing, to note that while the trial judge withheld a judgment as to the moral fitness of the plaintiff for purposes of exercise of custody, he felt obliged to give consideration to
"much evidence concerning the plaintiff's immoral conduct during her marriage" with other men and the strong indication that she had had an extra-marital pregnancy and consequent abortion. There was evidence that plaintiff's personal attention to the children was rather desultory during her cohabitation with defendant. The Union County Probation Officer's report in evidence indicates that the children are well cared for and happy with the defendant. We consider the conclusion of the trial judge on the merits of the custody question overwhelmingly justified by the proofs.
With respect to the main issue projected by the plaintiff -- the full faith and credit due the Nevada custody judgment under the Federal Constitution -- Judge Tomasulo, sitting in the trial court, held that the parens patriae jurisdiction of the New Jersey court in the matter of supervision of children resident here, reinforced by our statutory policy generally precluding the removal of native children from the state where a fit parent resides here and does not consent to the removal, R.S. 9:2-2; 9:2-4 (see Fantony v. Fantony , 21 N.J. 525, 535 (1956) and the same case in the Chancery Division, 36 N.J. Super. 375, 379 (1955)), warranted an independent inquiry into and determination of the merits of the question of custody without regard to the judgment of the Nevada court. Whether this is a correct conclusion is one of the prime issues on this appeal.
The general question as to when the judgment of a sister state adjudicating the custody of a minor child is entitled to full faith and credit under the United States Constitution, Article IV, Section I, as implemented by Act of Congress, 62 Stat. 947 (1948), 28 U.S.C.A. , § 1738, is attended by the widest contrariety of viewpoint and rationale. See the principal and concurring opinions in State of New York ex rel. Halvey v. Halvey , 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947), and the principal, concurring and dissenting opinions in May v. Anderson , 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953);
Ehrenzweig, "Interstate Recognition of Custody Decrees," 51 Mich. L. Rev. 345 (1953); Stansbury, "Custody and Maintenance Across State Lines," 10 Law & Contemp. Prob. 819 (1944); Note , 56 Col. L. Rev. 630 (1956); Comment , 5 Kans. L. Rev. 77 (1956); Stumberg, "Status of Children in the Conflict of Laws," 8 U. of Chi. L. Rev. 42 (1940). Ideological conflict exists as to (a) the basis for jurisdiction in the court rendering judgment, i.e. , whether domicile, residence or physical presence of the child is requisite or sufficient, the effect of in personam jurisdiction over the contesting parents, and whether the concept of multiple jurisdiction is valid in this field; (b) the extent to which the temporary nature of the status adjudicated permits a later re-examination of the factual situation obtaining as of the time of the judgment, and (c) the right or duty of the forum, if the residence or domicile of the child, to make its independent investigation as parens patriae , unfettered by principles of res judicata or full faith and credit. The Ehrenzweig, Stansbury and Stumberg articles cited above are uncommonly penetrating investigations of these questions and of their social as well as doctrinal implications.
The United States Supreme Court had two fairly recent opportunities to furnish authoritative guidance in this difficult field in the Halvey and May cases, supra , but eschewed both. In the Halvey case, New York, the state where the parties were matrimonially domiciled, was asked to give credit to a Florida custody judgment in favor of a wife who went there with the child, established a residence and obtained an award of both divorce and custody in a proceeding devoid of personal jurisdiction over the father. The father had returned the child to New York the day before the Florida judgment was entered. The New York court was permitted to render an independent determination on the matter of custody on the limited ground that if full faith and credit was applicable, it was only such as attended the Florida judgment at home, and the Florida law permitted a re-examination of all the circumstances, including those existing at the time the judgment was entered but not then
made known to the court. The prevailing opinion specifically reserved decision (330 U.S. , at pages 615, 616, 67 S. Ct. , at page 906) as to such questions as
"whether Florida at the time of the original decree had jurisdiction over the child, 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 upon the husband; whether the power of New York to modify the custody decree was greater 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."
Only one of the questions left beclouded in Halvey was resolved, and that not too satisfactorily, when next, in the May case, supra , the court had occasion to deal with the matter of interstate incidents of a custody judgment. There the parties were matrimonially domiciled in Wisconsin, and, after the wife went to Ohio with the children, the husband obtained an ex parte decree of divorce which also awarded him custody of the children. The wife was served in Ohio but did not appear in the proceedings. Pursuant to the judgment the children were returned to the father in Wisconsin and remained there several years. On a subsequent visit of the children to the mother she refused to return them, and the father brought a habeas corpus proceeding in Ohio to compel their surrender on the basis of the Wisconsin judgment. The Ohio courts held for the father. The Supreme Court reversed, holding that the mother's "personal rights" to "immediate possession" of the children could not be cut off by a judgment in a proceeding in which jurisdiction in personam over her had not been obtained, even if the children were properly regarded as domiciled in Wisconsin when judgment was entered there. The court noted that under Ohio law a habeas corpus suit was not a proper action to determine custody as between the parents. Three members of the court dissented regarding the Wisconsin judgment as adequately founded in the court's jurisdiction over the father and children and requiring
full faith and credit. The jurisdictional determination in the May case is not important in the case at hand since the present defendant had submitted to the jurisdiction of the Nevada court. But what Mr. Justice Frankfurter said by dictum , after concurring in the result for the stated reason that Ohio was not bound by the Federal Constitution to recognize the Wisconsin judgment although she was not precluded from doing so as a matter of local ...