In Re Alderman

BROWN, J. It appears from the findings of his Honor that the petitioner and respondent were divorced by the courts of the State of Florida, where they resided in 1909 and 1910, at the instance of the respondent, upon the ground of willful, continued, and obstinate desertion by petitioner of his wife and only child, and the general custody of the child was awarded to the mother, who afterwards removed with her child to Brevard, N. 0., where she now resides with her father. The custody of children in cases of the divorce and separation of their parents is a subject as delicate as any with which courts have to deal. *512 The good of the child should be, and always is, the chief thing to be regarded and the governing principle which guides the judge. All other considerations sink into insignificance. Many cases and text-writers can be cited where the principle is announced that the physical, moral, and spiritual welfare of the child is the only safe guide in cases of this kind; and the courts will be guided by those surroundings. In re Lewis, 88 N. C., 34; Jones v. Cotton, 108 N. C., 458; In re Turner, 151 N. C., 474; Hurd on' Habeas Corpus, 528; Sehouler on Dorn. Rel., 248; 2 Bishop M. and D., sec. 529; Umloufs case, 27 Ill. App., 378. One who reads the findings .and the judgment of the just and .learned judge who heard this matter in the court below must conclude that no other consideration than the child’s welfare influenced his decision to remand the child to the care of its best friend, the mother. The love of the mother for her child, regardless of conditions and environments, has been proven by the history of the ages, and while her devotion can be counted upon almost unfailingly, it is sad to say that sometimes the tie between father and child is a different matter and requires the strong arm of the law to regulate it with some degree, of humanity and tenderness for the child’s good. But the petitioner contends that under the Florida decree he has a vested right in the partial custody of the child, which this Court is bound to respect and enforce under the full faith and credit clause of the Federal Constitution. That part of the decree of the Florida court which petitioner invokes reads as follows: “W. F. Alderman shall be allowed to visit said child at such times as may to said Sarah E. Alderman seem reasonable, and the child, Hugh, may visit the defendant, W. F. Alderman, at such times and under such circumstances and conditions as are reasonable and expedient, and said child may at least be permitted to visit W. F. Alderman for two weeks at a time, etc., if W. F. Alderman desires.” The language used would seem to indicate that the mother is expected to exercise careful supervision and control over the child, and that her consent or permission is necessary before the child can visit its father even for two weeks at a time. But, nevertheless, *513 if tbe language used was compulsory in its terms, tbat clause of the decree is not sucb a judgment of another State which the courts of this State are bound to enforce. All States and governments possess inherent power over the marriage relation, its formation and dissolution, as regards its own citizens, and as both the husband and wife were citizens of Florida and properly before its court' as parties to the suit, we must give full faith and credit to the annulment of their marriage. Atherton v. Atherton, 181 U. S., 155; Haddock v. Had dock, 201 U. S., 563. But the infant child of their union is not property, and the father can have no vested right in the child or its services under a decree divorcing the parents. Such decree, as to the child, has no extraterritorial effect beyond the boundaries of the State where it was rendered. The child is now a citizen of North Carolina and as such peculiarly under its guardianship, and the courts of this State will not remand it to the jurisdiction of another State, especially where, as in this case, it is so manifestly against the true interests of the child. “Minors are the wards of the Nation, and even the control of them by parents is subject to the unlimited supervisory control of the State.” 1 Tiedeman State and Fed. Con., p. 325; Starnes v. Manufacturing Co., 147 N. C., 559. In this case it is said: “The supreme right of the State to the guardianship of children controls the natural rights of the parent when the welfare of society or of the children themselves conflicts with parental rights.” Therefore it follows that when this child became a citizen and resident of this State and duly domiciled here, it is no longer under the control of the Florida courts. In the case of Frank Bort, 25 Kansas, 308, the full faith and credit clause of the Federal Constitution was invoked by the petitioner in support of his supposed right under a decree in another State. Mr. Justice Brewer (afterwards of the Supreme Court of the United States) denied the correctness of such position, saying: “This claim seems to rest on the assumption .that the parents have some property rights in the possession of their children, and is very justly repudiated by the courts of Massachusetts.” 2 Bishop on Mar. and Div., 5 Ed., 204. *514 The same question was before the Kansas Court again in 1885, and it held that the decree of the foreign court in no manner concluded other courts of the State where the child is then residing, as to the best interests of the child. Avery v. Avery, 5 Pac. Rep., 419, citing and approving In re B.ort. To the same effect is the decision of the Court of Appeals of New York in People v. Allen, 105 N. Y., 628. In Wilson v. Elliott, 96 Tex., 474, the same question was considered by the Supreme Court of Texas and it was held that the decree of the court of another State awarding the custody of a child was not binding upon the courts of Texas under the full faith and credit clause of the Federal Constitution after the child had become domiciled in Texas. The Court says: “Were the subject-matter of the decree property, or a matter in which the parents were solely concerned, the decree would, by reason of said article, be entitled to the effect which the trial court lias given it. But neither of these propositions is true. The child is not in any sense property of the parents. It is also equally well established that the Government has an interest in the welfare and consequently in the question of the custody and environments of the child, and to this the rights of the parents are entirely subordinate.” See, also, Legate v. Legate, 87 Tex., 252; S. v. Michell, 54 L. R. A., 927. The judgment is Affirmed.