Bachman v. Mejias, 1 N. Y. 2d 575, 136 N. E. 2d 866 (1956)

Furlong, Vincent P.

English

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Buffalo Law Review Volume 6 Number 2 Article 41 1-1-1957 Domestic Relations—Foreign Custody Decrees Vincent P. Furlong Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Family Law Commons Recommended Citation Vincent P. Furlong, Domestic Relations—Foreign Custody Decrees, 6 Buff. L. Rev. 191 (1957). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol6/iss2/41 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OP APPEALS, 1953 TERMboth from the standpoint of the child itself and the interest which the state hasby virtue of its social welfare laws. The only remaining question is whether theNew York procedure of enforcing this duty in the situation contemplated bythe Act denies due process to a prospective respondent.Due process, of course, does not guarantee any particular type of procedurein the state system but it does require that the procedures which are employedbe fair.2 2 The patent necessity of cross-examination to a fair hearing has beenemphasized by many writers.2 3 It would be impossible for a court sitting in NewYork to determine the credibility of a complainant or witness in California unlessthere is direct evidence contradicting the testimony thus obtained.It is submitted by the writer that, although the decision upon this point iscorrect, the grounds set forth by the Court, that this is a civil suit and not acriminal action, are somewhat weak. The Act is directed toward the errant fatherand is a means of overcoming his ability to use lack of jurisdiction as a shieldagainst this responsibility. The respondent may always submit himself to the juris-diction of the initiating court in order to confront the complainant and herwitnesses.2 4 The respondent has a choice, albeit an expensive one, in the instantsituation. It would seem that better social policy would dictate that the expenseof travel should be placed upon the one who has shirked his duty than upon theone to whom the duty is owing. Due process has not been denied-it merelyhas been used as a bargaining tool.Foreign Custody DecreesIn Bachman v. Mejias25 the controversial26 question of custody of childrenwas again before the Court of Appeals. Respondent had taken her child to NewYork in defiance of an order of a Puerto Rico Court which had previously givencustody to the child's grandparents. The prior decree had provided for readjudica-tion after a hearing. Evidence tended to show that the child's social developmentwas retarded as a result of his separation from his mother, brother and sister.Petitioner commenced habeas corpus proceedings in New York for the return ofthe child.27 The Court held, reversing the Appellate Division,2s that the writwas properly denied.22. Dolany v. Rogers, 281 U. S. 362 (1930).23. See, e.g., 5 WGMORE, EVIDENCE §1367 (3d ed. 1940); Stryker, Cross-Examination, 2 BUFFALO L. REV. 45 (1952).24. McK. UNCONSOL. LAWs §2118; Smith v. Smith, 125 Cal. App. 2d 154, 270P. 2d 613 (1954). The Smith case presents an excellent resume of the purposes andprocedures of reciprocal support laws.25. 1 N. Y. 2d 575, 136 N. E. 2d 866 (1956).26. Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Micar. L.REV. 345 (1953).27. People ex rel. Pruyne v. Walts, 122 N. Y. 238, 25 N. E. 266 (1890).28. 1 A. D. 2d 319, 151 N. Y. S. 2d 48 (2d Dep't 1956).BUFFALO LAW REVI1EWIt has been stated as a general rule that the Full Faith and Credit Clausedoes not apply to child custody decrees. 29 This is a rather broad statement ofsocial policy although at least one state has felt itself empowered to re-open anyforeign custody decree where the child in question is a resident regardless ofthe circumstances. The prior decree is considered to be evidentiary but not con-trolling.30 A few states will "hold against" a spouse who defies a foreign decreewhereas it has been held that the culpability of the abducting parent is of littlemateriality.31In the maze of "rules" resulting from the necessary case by case adjudicationof custody disputes, the welfare of the child seems to be the foremost factor2While a decree of divorce from a foreign state is given full faith and credit inNew York even where custody is involved, the custody provision is subject tomodification if it is deemed necessary for the child's welfare and the child is aresident of New York.33 Of course a custody decree will not be interferedwith where there has been no change in the circumstances which surrounded theoriginal decree - the scheming parent may not take advantage of a social policywhich is for the benefit of the child.3 4In the instant case the Court has correctly refused to punish the child for thesins of the mother (if, indeed, the departure from Puerto Rico in the face ofloss of the child for an additional period can be said to have been a transgression).35The constitutionality of the decision cannot be denied in view of the decision inPeople ex rel. Halvey v. Halvey.3629. While this rule has generally been applied, the Supreme Court has neverdecided this question. However, in People ex rel. Halvey v. Iyalvey, 330 U. S. 610(1947) it was held that where the foreign jurisdiction provided a means ofreopening the adjudication, the state of residence of the child could do so also.In May v. Anderson, 345 U. S. 528 (1953), Mr. Justice Frankfurter indicated Inhis concurring opinion that the welfare of children takes precedence over theFull Faith and Credit Clause although the decision was based upon a jurisdic-tional point.30. Moyer v. Moyer, 171 Kan. 495, 233 P. 2d 711 (1951).31. In re Bauman, 82 Cal. App. 2d 359, 186 P. 2d 384 (1947); Cook, v. Cook,135 F. 2d 945 (D. C. Cir. 1943); the latter~case involved a dispute between a parentand a foster home.32. FinZay v. FinZay, 240 N. Y. 429, 148 N. E. 624 (1925); May v. Anderson,345 U. S. 528 (1953).33. Ansorge v. Armour, 267 N. Y. 492, 196 N. E. 546 (1935).34. Ansorge v. Armour, supra note 33; Finlay v. Finlay, 240 N. Y. 429, 148N. E. 624 (1925).35. Pending a readjudication of the custody decree, the Puerto Rico courthad ordered respondent to return the child to its grandparents. Prior to serviceof this order, respondent returned to New York.36. 330 U. S. 610 (1947). Since the Puerto Rico court provided for a read-judication New York could modify the decree.

Domestic Relations—Foreign Custody Decrees

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Domestic Relations—Foreign Custody Decrees

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