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A v. M and C

Decided: March 30, 1962.


Schwartz, J.c.c.


This is an adoption proceeding. Plaintiff A is domiciled and resides in New Jersey. The infant S, born August 27, 1957, resided with her and her late husband from July 3, 1959 until October 8, 1961, when the husband died. S has been living with her since. The infant was born in Connecticut, and her parents M and C are domiciled there. Plaintiff maintains that the mother (M) gave custody of S to her and her husband on July 3, 1959 with the intention that she "raise her as your own," knowing "she'll be in good hands." To support this intent a letter from the mother dated July 23, 1959 was placed in evidence. It reads as follows:

"July 23, 1959

I, [M] * * * give the right to Mrs. [A] * * * to take my baby, [S] * * * out of the state as they please.


The mother, however, says the letter and birth certificate were given at plaintiff's request so as to "give them permission to take * * * [S] any place they were going which would say in the letter that I gave my permission, I'd give my permission to take my baby to any place they please," and that by this letter, she had no intention to give permission and consent to adopt the child.

It is not disputed that the mother was about to have an operation performed and requested plaintiff and her late husband to take the child on recommendation of her welfare worker, as she had five other children and S, due to her age, was the greatest problem at the time.

The father was not living with the mother on July 3, 1959 and did not know the child was taken to New Jersey. The father left the mother in May 1958. They resumed life together, however, in October 1959. Plaintiff's deceased spouse was a first cousin of the child's father.

The parents filed an answer, appeared, and raised the question of jurisdiction at the close of the plaintiff's case. Maintaining that the child is not domiciled in this State, the parents argued there is no jurisdiction and advanced In Re Susan , 22 N.J. Misc. 181, 37 A. 2 d 645 (Orph. Ct. 1944), as authority. The court reserved the question and the preliminary hearing proceeded, under R.S. 9:3-24, to completion.

Since "a conflict of laws problem arises whenever a foreign element gets into a legal question," a fortiori the question of jurisdiction here falls in that area of the law. Goodrich, Conflict of Laws (Hornbook Ser , 3 d ed.), pp. 3, 166.

"The aspect of the subject of jurisdiction dealt with here is the power of a state, through its courts to create rights, which under the principles of the common law of Conflict of Laws will be recognized as valid in other states." Ibid., supra, p. 167.

In the Restatement, Conflict of Laws , § 42, p. 69, it is said "jurisdiction" (in this context) means the power of a

state to create interests which under the principles of the common law will be recognized as valid in other states.

Should New Jersey, under these facts, assume jurisdiction over creation of a status, having the effect of finality on nonresidents, resulting in severance of the natural relationship of parent and child and substitution of an artificial relationship, permitted by law, in its stead?

In Re Susan, supra , advanced by defendants as authority for their position, did not involve a conflicts of law question. A "foreign element" was not introduced or involved there. All parties involved were domiciled in New Jersey. Concern there was only with the county in which the proceeding was to be held. The statute at that time provided that the "husband and wife jointly, may petition the Orphan's Court of the county where the petitioner or any minor child may reside for permission to adopt * * *." (R.S. 9:3-1, repealed.) The action was brought in Bergen County. The adoptive parent resided in Union County, and the child lived with her. The mother's domicile was Bergen County and, in that instance, was the domicile of the child, as a matter of law. Residence was construed to mean domicile, and the child being domiciled in Bergen County, the Orphan's Court there ruled it had jurisdiction notwithstanding the child resided -- that is, actually lived in Union County.

The broader concept of a state's jurisdiction to create an interest (the status of adoption) in the absence of domicile of one of the parties to the status, is the question here. The status involved here is denominated "domestic status." 2 Beale, Conflict of Laws, pp. 649-650. The action being in the nature of a proceeding in rem , does the State have jurisdiction over the res , that is, the said status? See In Re Susan, supra , at p. 182, on "extra-territorial effect."

The status of adoption is the settled relation between the adoptive parent and the adopted child, and is a creature

of statute unknown to the common law. Adoption of Robinson , 26 N.J. Super. 440 (App. Div. 1953).

Our present statute provides that the action " shall be instituted in the Superior Court; or it may be instituted in the Juvenile and Domestic Relations Court or County Court of the county in which the plaintiff is domiciled," with certain exceptions which are not relevant here. N.J.S.A. 9:3-20 (emphasis supplied)

The statute does not specifically exclude an adoptive parent not domiciled in New Jersey. Further, the statute neither specifically requires that the domicile of the child be in this State nor does it state that adoption may be granted notwithstanding the child is domiciled elsewhere. It is silent in those respects, excepting that it permits the action in the County Court or Juvenile and Domestic Relations Court of the county in which plaintiff is domiciled and it designates the Superior Court, without any requirement or mention of residence or domicile concerning any of the parties if the action is brought in the Superior Court.

Is the State of New Jersey without jurisdiction where the child is domiciled in Connecticut? That the child is domiciled in Connecticut must be conceded notwithstanding the letter of the mother, above noted. The domicile of the child follows the domicile of the father. It is settled that persons not sui juris are assigned a domicile by operation of law; a legitimate child takes the domicile of its father at birth; regardless of where the child may actually live, the domicile of the father is that of the child during minority. In re Susan, supra , 22 N.J. Misc. , at p. 185; Restatement, Conflict of Laws, sec. 14, p. 30, sec. 30, p. 55; Stumberg, Conflicts of Law (2 d ed.), p. 45. Yarborough v. Yarborough , 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 294 (1933); Lamar v. Micou , 112 U.S. 452, 5 S. Ct. 221, 28 L. Ed. 751 (1884); Udny v. Udny, L.R. 1 H.L. Sup. Ct. 441 (1869); cf. Glass v. Glass , 260 Mass. 562, 157 N.E. 621, 53 A.L.R. 1157

(Sup. Jud. Ct. 1927); also see Sudler v. Sudler , 121 Md. 46, 88 A. 26, 49 L.R.A., N.S. , 860 (Ct. App. 1913).

"Domicile is a subject of importance in our law because a considerable number of jural relations are determined by the law of the domicile of the person concerned. * * * These are principally cases of personal status, such as marriage and divorce, legitimacy and adoption * * *. * * * Domicile is also an important basis of jurisdiction * * *." 1 Beale, op. cit., pp. 91, 92.

Domicile has been referred to as follows:

"There is no doubt that every person has his domicile in that place where he has established his household and the chief part or bulk of his business and of his property; from which he is not intending to depart if nothing calls him away; from which when he goes away he seems to be wandering from home and when he has returned he has ceased to be wandering." Ibid., p. 96, citing Lord v. Calvin , 4 Drew 366, 375.

While adoptions have been successfully accomplished by compliance with laws of the domicile of the adopting parent where the child's domicile is elsewhere; Rizo v. Burruel , 23 Ariz. 137, 202 P. 234, 19 A.L.R. 823 (Sup. Ct. 1921); Woodward's Appeal , 81 Conn. 152, 70 A. 453 (Sup. Ct. Err. 1908); Hopkins v. Gifford , 309 Ill. 363, 141 N.E. 178 (Sup. Ct. 1923); Stearns v. Allen , 183 Mass. 404, 67 N.E. 349, 97 Am. St. Rep. 441 (Sup. Jud. Ct. 1903); James v. Williams , 169 Tenn. 41, 82 S.W. 2 d 541 (Sup. Ct. 1935), and it has been held that adoption at the domicile of the child is valid where the adoptive parents had no domicile within the state, Rizo v. Burruel, supra; Goodrich, op. cit., p. 448; Wolf's Appeal , 13 A. 760 -- 10 Sad. 139 (Pa. Sup. Ct. 1888). See Blanchard v. State ex rel. Wallace , 30 N.M. 459, 238 P. 1004 (Sup. Ct. 1925), 24 Mich. L. Rev. 486 (1926), and such adoptions have been recognized as valid in a state other than the state of adoption, Van Matre v. Sankey , 148 Ill. 536, 36 N.E. 628, 23 L.R.A. 665, 39 Am. St. Rep. 196 (Sup. Ct. 1893); Succession of Caldwell , 114 La. 195, 38 So. 140, 108 Am.

St. Rep. 341 (Sup. Ct. 1905); Fisher v. Browning , 107 Miss. 729, 66 So. 132, Ann. Cas. 1917, c. 466 (Sup. Ct. 1917); Restatement, Conflicts of Law , §§ 142A, 143; the Restatement , § 142B, limits the former with the provision that the state of domicile of the adopting parent must have jurisdiction over the child or the person having legal custody of the child.

Plaintiff does not occupy the position of legal custodian since N.J.S.A. 9:2-14 provides, inter alia , that "no surrender of custody of a child shall be valid in this State unless made to an approved agency pursuant to the provision of this act or * * * substantially similar law of another State * * *." In addition, N.J.S.A. 9:2-15 provides that "No surrender of custody by nor termination of the parental rights of one parent shall affect the rights of the other parent; nor may one parent act as the agent or representative of the other parent in the surrender of custody or termination of parental rights."

While these sections are from chapter 2 of Title 9, dealing with care, custody, guardianship and support in general, chapter 3, relating to adoption, applies the same definition of custody as N.J.S.A. 9:2-13(c). The word "custody" as used in the latter section has the following meaning:

"The word custody means continuing control and authority over the person of a child, established by natural parenthood, by order or judgment of a court of competent jurisdiction, or by written surrender to an approved agency pursuant to law."

Furthermore, the order entered in this matter fixing the date for this preliminary hearing under N.J.S.A. 9:3-23, subd. A (4), is required, among other things, to "declare that the child sought to be adopted shall be a ward of the court and that the custody of such child shall be subject to the further order of the court."

While Goodrich cites the cases above, in the former classification, as authority for a valid adoption where the adopting

parents are domiciled, even though the child's domicile is elsewhere, and comments that the results "seem a desirable one." Beale takes a contrary view, that only the state of the child's domicile should have jurisdiction to permit adoption, and cites Woodward's Appeal, supra , and Stearns v. Allen, supra (cited by Goodrich in support of his view) as authority for adoption in a state other ...

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