The parties involved in this proceeding, Paule Renee Odette Levicky, now Paule Peltier Joubert, and Peter Paul Levicky, are the divorced parents of Allen Levicky, age 9 1/2 years, now in the custody of defendant. Paule Renee Odette Levicky had judgment for absolute divorce against Peter Paul Levicky, in the month of December, 1955, in the Civil Tribunal of Nantes, Republic of France. The suit was uncontested and by the terms of the judgment rendered therein she was awarded custody of the said infant child born of the marriage. Thereafter defendant appealed from the said judgment which was affirmed by the Court of Appeals, Rennes, France.
The defendant has not remarried. On February 12, 1958 plaintiff married Claude Joubert, a landscape artist, who had previously been employed by her.
Plaintiff testified that defendant represented to her, while they were living together in France, that he desired to take the child of the marriage to the United States for a visit with defendant's mother. His stated plan was to return within three months. He purchased return trip tickets on May 10, 1953. She was led to believe that it was defendant's intention to return to France with the child upon the conclusion of his visit. This he has never done. Plaintiff visited the United States in July 1956 in an effort to see her son and with the hope that defendant would permit
her to take the child back to France. Nothing came of her efforts except frustration and difficulty in seeing her child. The present action stems from the disputed claims of the parents over the question as to whom should be awarded the child's permanent care, custody and education. At the time of the rendition of the judgment for divorce in the month of December, 1955 the child was not in the custody of the plaintiff nor in the jurisdiction of the Civil Tribunal of Nantes, Republic of France, but was actually in the custody of the defendant and residing in this State where defendant had an established legal domicile.
The defendant contends that even though the validity of the order of the Civil Tribunal of Nantes, Republic of France, granting custody to the plaintiff were to be declared valid, it can only derive such force and effect from facts and conditions before that court when such order was made, and the courts of this State are not bound by any facts and conditions affecting the custody of the child arising subsequent to the making of such order in said French court.
The boy has been exposed to the knowledge of the contentions of his parents over his custody, and although he may not have been injured emotionally, such a situation is difficult to harmonize with an undisturbed development and growing up. Despite the fact that Allen Levicky has been in the midst of this contest and has inclined in his feelings towards his father, I do not find any evidence that such inclination is deeply seated and fixed. Almost five years continuously -- the formative years -- in the custody of his father, without contact with or visitation accorded to the mother, provides some explanation for the child's stated reason in wanting to stay with his father. Visitation has not been possible for the mother, who lives over 3,000 miles distant from her child and, besides, she finds the expense of travel and living accommodations on such trips a great financial burden. The child is caught in the current of efforts made by the mother to obtain permanent custody and by the father to retain it.
Plaintiff urges the application of the theory of comity in recognizing, giving effect to and granting her the right of custody under the judgment obtained by her in the French court. In Fantony v. Fantony , 21 N.J. 525, 533 (1956), we find the pertinent rules for the application of the principles of comity:
"Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other. But it is recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. Hilton v. Guyot , 159 U.S. 113, 16 S. Ct. 139, 143, 40 L. Ed. 95 (1895); The Disconto Gesellschaft v. Umbreit , 208 U.S. 570, 28 S. Ct. 337, 340, 52 L. Ed. 625 (1908). Also see 11 Am. Jr., sec. 5, p. 299.
The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our State. Zanzonico v. Neeld , 17 N.J. 490, 495 (1955); cf. Guarantee Bank & Trust Co. v. Gillies , 8 N.J. 88, 101 (1951); Hachez v. Hachez, supra , 124 N.J. Eq. , at page 447. The rule of comity is grounded in the policy of avoiding conflicts in jurisdiction, unless upon strong grounds, and the general principle that the court which first acquires jurisdiction of an issue has precedence, in the absence of special equities. A litigant cannot be compelled to act elsewhere, but may remain in the court which first acquires jurisdiction and abide by the terms of its decree. O'Loughlin v. O'Loughlin , 6 N.J. 170, 179 (1951); Stultz v. Stultz , 15 N.J. 315, 319 (1954). The expressions in these cases on the principles of comity are in accord with the decisions of the United States Supreme Court."
On an application for temporary custody it must be made clear that a remand of the child to the Republic of France should only be ordered after it has been determined such action will be in the best interest and welfare of said child. Our cases make clear that the welfare of the ward is the paramount consideration. It rises above the controversy of the parents over his custody and the final determination of the question must be measured by what will subserve the best interest and ...