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Borys v. Borys

Decided: February 8, 1978.


On appeal from the Superior Court, Appellate Division.

For affirmance and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None.

Per Curiam

This case presents a substantial federal constitutional question. The Appellate Division held that the full faith and credit clause does not compel recognition of a sister state decree which purports to alter the custody of minor children domiciled in New Jersey. We affirm.


Nancy Jean and William John Borys were married in New Jersey in 1969, and moved to Florida the following year. They had two children, William John Borys, Jr., born in New Jersey in 1969, and Marlo Jean Borys, born in Florida in 1970. The mother and children returned to New Jersey in February, 1973, and the Boryses were granted a Florida divorce four months later. The divorce decree awarded permanent custody of the children to the mother.

The father, who had remained in Florida, later sought to change the custody order. Both parents appeared. In an order entered September 16, 1974, the court vacated its original order, continued custody with the mother on a temporary basis, and gave the father visitation rights in Florida. The court retained jurisdiction to enter further custody orders. In December, 1974 the Florida court informally interceded to require the father to return the children to the mother after a visit. On August 27, 1975 the mother again sought assistance from the Florida court when the father failed to return the children at the conclusion of their visit. At that time the father was also alleged to be in arrears in his child support payments. Meanwhile, the paternal grandparents, Florida residents, had petitioned the court (with their son's consent) to award them custody of the children. The court arranged for the children to be returned to their mother in New Jersey upon the mother's stipulation that the children would be returned to Florida for a custody hearing.

In accordance with the Florida court's instructions, the paternal grandparents paid the travel expenses of the mother and children for a hearing in Florida on September 11, 1975. Although the mother reported to the judge's chambers on September 10, she and the children did not appear at the hearing. Instead, they returned to New Jersey, allegedly upon the advice of Florida counsel. Notwithstanding their absence, the court proceeded to hear testimony from the children's father and paternal grandparents and one of the grandparents' neighbors. All four witnesses were examined by the grandparents' attorney. Neither the mother nor the father was represented by counsel. The court also had before it two letters concerning the mother's care of the children from the New Jersey Division of Youth and Family Services, dated November 20, 1974 and September 26, 1975, and a letter concerning the son from the Raritan Bay Mental Health Center to the Division of Youth and Family Services. Finally, the court directed the Circuit Court Counselors Office to investigate the grandparents' suitability as custodians. On January 20, 1976 the Florida court entered an order which held the mother in contempt and awarded permanent custody of the children to the grandparents. This order could not be enforced because the children were no longer in Florida.

On February 5, 1976, the mother started custody proceedings in New Jersey. Her complaint recited the existence of the Florida order, but asserted that the Florida court had lacked jurisdiction. The grandparents initiated a separate Chancery Division action on February 13, 1976, seeking recognition and enforcement of the Florida custody award. The mother and grandparents moved for summary judgment in their respective actions, and the mother also moved for consolidation. The Chancery Division denied the motion for consolidation and ordered summary judgment for the grandparents on the ground that the mother had not alleged any changed circumstances since entry of the Florida order. The Appellate Division correctly reversed and remanded

for a plenary hearing on the consolidated complaints. The grandparents appealed as of right, there being a substantial constitutional issue. R. 2:2-1(a). After hearing oral argument we entered an order affirming the judgment below and indicating that an opinion would be filed in due course. 76 N.J. 103 (1978). See Dolan v. Tenafly, 75 N.J. 163 (1977). We followed this procedure in the interest of informing all parties of our decision as soon as possible, since this case involves the sensitive matter of children's custody. In light of the importance of the question presented and the lack of authoritative precedent, we now set forth at some length our reasons for affirming the Appellate Division's decision.


The full faith and credit clause states:

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. [ U.S. Const. Art. IV § 1]

Congress has directed that judicial proceedings

In interpreting the full faith and credit clause, courts must reconcile the apparent simplicity of this statutory and constitutional language with the complexity of interstate relations in a federal system. This reconciliation has been especially difficult in domestic relations cases in general and in custody litigation in particular. See Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942) (divorce); Williams v. North Carolina, 325 U.S. 226,

65 S. Ct. 1029, 89 L. Ed. 1577 (1945) (divorce); Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269 (1933) (child support); Jackson, "Full Faith and Credit -- The Lawyer's Clause of the Constitution," 45 Colum. L. Rev. 1, 14 (1945).

The full faith and credit clause, which was derived from a similar provision in the Articles of Confederation, received little attention during the constitutional convention and the ratification debates. The scanty history does suggest, however, that the framers were concerned primarily with enforcement of money judgments.*fn1 It is not surprising that the clause has been applied rigorously to such judgments, regardless of the underlying cause of action. See Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935) (tax deficiency judgment); Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039 (1908) (gambling debt). As the United States Supreme Court explained,

[t]hese consequences flow from the clear purpose of the full faith and credit clause to establish throughout the federal system the salutary principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered, so that a cause of action merged in a judgment in one state is likewise merged in every other. The full faith and credit clause like the commerce clause thus became a nationally unifying force. It altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nation-wide application. [ Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439, 64 S. Ct. 208, 214, 88 L. Ed. 149 (1943)]

Finality has little meaning, however, in the context of child custody adjudication. A custody decree is purely prospective, intended to secure the future welfare of the child. Fantony v. Fantony, 21 N.J. 525, 536 (1956). Further, the decree may have serious consequences for some who are not parties to the litigation, namely, the child and its state of residence. Since the conditions which would satisfy the best interests of the child during all of its minority could not be conclusively determined in one decree, custody orders are uniformly held to be modifiable. See Restatement (Second), Conflict of Laws, § 79, comment b.

The power of a forum state to modify a foreign custody decree consistently with the full faith and credit clause was recognized by the United States Supreme Court in New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947). Mrs. Halvey left her husband in New York and took their child to Florida, where she ultimately obtained an ex parte divorce. On the day before the Florida court awarded permanent custody of the child to Mrs. Halvey, Mr. Halvey clandestinely returned to New York with the child. When Mrs. Halvey initiated a habeas corpus proceeding in New York to recover the child, the New York court modified the Florida order to grant Mr. Halvey visitation rights. The Supreme Court affirmed:

So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do. * * * * The general rule is that this command requires the judgment of a sister State to be given full, not partial, credit in the State of the forum. * * * * But a judgment has no constitutional claim to a more conclusive or final effect in the State of the forum than it has in the State where rendered. * * * * Whatever may be the authority of a State to undermine a judgment of a sister State on grounds not cognizable in the State where the judgment was rendered (Cf. Williams v. State of North Carolina, 325 U.S. 226, 230, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577, 157 A.L.R. ...

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