Untitled Texas Attorney General Opinion

Ron. tier P. Rainey,President The lbiversityof Texas Austin,Texas

DsarMr.Raiasyr OpinionX0. O-1579 Re:.Legalresidenceof iminor who has been plaosd in his mother'scustody. ,M moaiwd your lstter of Ootobsr 6, 1939, followedby your lstter dated Novzsabar 3, 1939, inwhioh you requestour opinionoaths following question:

"When a tinor’s parentsam divoroedand ha is placedin the oustodyof his mother, does his legal residsnoefollowthat of his mother,who takes him to anotherstatewith the father'sacquieaoeaoe?"

ktiole 2664o;Vernon'sRevissd Civil Statutesof lkxas,provides iB port PS follow81

“A non-residsnt studentis hereby definedto be,a studbstof less than bW&y4Be (21) years of age, living amy from hi8 family,andwhose fsm- ily residesin anotherstate or whoa? familyhas residedwithin the state for a period of tinisless than twslvo (12)months priory to'the date of registration, or a studeat of tweztty-sne (21) years of age or over who residesout of the state or wlm has residedwithinthe Stats for a pariod of less* twelve (12)months prior to the date of mgistrati0a.a

Thatems "reside","reeidanaa"and adcmioile"ham been givea variedmeaningsand shadesof meaning. In some lnstanoesthey am ooa- struadto bs differentand in others thsy am held to be ideatioal, dependingupor~the apparentstand inwhioh thsy am employedwhen oon- sideredtogetherwith the whole oontexbof a statute.'It nas statedin an opinionty this departmentdated September13, 1933,addressedto Dr. H. Y. BcPlediot, that "reside"as used i&this statutehas the sams mean- ing as ndcmioileW.~This same ruling.wasmade in oonferenoeopinim No. 2977, datsd,January10, 1938, Attorney General'sReport 1994 to 1936, p. 114, dimstsd to Dr. H. Y. Benedicrt;. %hem husbandand wife am living apart under a juduoialdeoree of diroroeor separation,the wife may asquim a separatedcaaioileof her own which will reaainunaffeotedby any ohatrge of residenceon the part of ths husband. A divorcedwomaamsy selecther own danioile, whether she is dimmed a vinoulomatrixonii,or only measa et thoro." 19 Corpus Juris 417.

Hon. Hmer P. Raiaey,page 2 (O-1579)

It is settledlaw in Texas that the residenceor domicileof a minor child is ordinarilythat of the fatherwhen the parentsare not di- vorced. Gulf C. dcS. F. Ry. Co. vs. Lemons, 206 S.S. 75. when a divoras has been grantedto the wife, an unrestriotedastody of the minor ohild givea her in the decree,her assadomiaileestablishesthat of-the ahild, even after her re+aairiage. Ricks vs. Buoks, SupremeCourt of ?&an., 83 W5381 9 R.C.L. 546.

The view that the child'sdcmiailefollowsthat of its mother ratherthan that of its father,where she has a separatedomicilesad has been tirdedthe oustodyof the child,eus taken in Toledo Ihroti~ Corn- pany vs. Cameron,137 Fed. 48, in reply to the oonteatioathatthe father's domioilein Obio, in which statethe wife oyssgranteda divoroewith cus- tody of the child, determinedthat of the ohild who was taken by the wife to anotherstated and lived ihem with her, aad that aoooriiaglythe obild was not entitledto sue in a FederalCourt as a citizenof the other State. The Court said:

"It is doubtlesstrue that the generalrule is that the domioileof the ohild followsthat of the father. But this ruIe does not hold when the pemats em judiciallyseparated,and the oustodyof the child is awarded to the mother. . . . It would be iaooasisteatwith such a deoreethet the dcmioileofthe child should o&&tue to be that of the Pathersfor the custody and controlof the ohild,upoa whichthefhther'sdomicileis imputedto the child,no longer exists,but is transferred-to the mother."

Ia Griffinvs. Griffin,187 Pacifio598, where a wife was granted a diwroe in Californiawith custodyof the ohildma, and subsequently obtainedthe court'soonditioaalpermissionto take than out of its juris- diction,but disregardedthe ooaditionto returnthan, theirfather having apparentlyremainedin that state,it ws said:

We larowof no law that would preventthe mother from ohangiagher dmnicile to anotherstate, and,'uponcompliancewith the deoree,taking the ohildrea with her. The childrenbeing in the oare and custodyof the mother,her resideaosis their residenoe. Suoh is the naturaleffeot of a decreeof divorce."

m'our opinionyour question,as ns have restatedit at the begin- ning of this opinion,shouldbe answeredia the affirmative. Ws have also been furnishedwith certifiedcopiesof tastnrments shamingthe removalof the student'sdisabilitiesas a minor, in the 37th DistrictCourt of Bexar countyon September7, 1939. Whether or not this judgmentis bindingoa the Universityis a questionwhichwe deem it unneo- essary for usto determine. The most that the judgmentoould establish, relativeto the mibor's residence,was that he was a residentof !&me8 at the tims of the prooeeding. And, even if the judgmentis bindingupoa

Hon. Homer P. Rainey,page 3 (O-1579)

the Ohiversity,he is a non-residentwithin the meaning of Article 26540 until he has r&sidedwithin the State for twelvemonths. As we have seen, his residence%a8 with h's mother,a non-resident,at least up tc the time of the judment.

Yours wry truly

ATTOBNEY GENSPALOF TEX4S

By /s/~H$-schieJohnson

HirsobieJohnson Assistant

HJ:RSxegw

APPROVED OpinionCamnittee A1TORREYGBSER&LOFTEXAS ByBWB chairman