Marlar v. Howard
226 S.W.2d 755
Nov. 15, 1949.
ACTION: Affirmed.

Petition by Ellen Marlar and another for a writ of habeas corpus, which was opposed by Merlene Hall Howard, and which involved custody of the defendant's children, of whom the plaintiffs were the paternal grandparents.

The Circuit Court, Harlan County, James F. Forester, J., sustained a demurrer to the petition and dismissed it, and the petitioners appealed.

The Court of Appeals, Van Sant, C., affirmed the judgment on the ground that the attempted modification of order granting custody of children to defendant by Tennessee court after the defendant and the children had become citizens and residents of Kentucky was void.

VAN SANT, Commissioner.
The appeal is from a judgment sustaining a general demurrer to, and dismissing, a petition for a writ of habeas corpus. Appellants are the paternal grandparents, and appellee is the mother, of Earlene and James Estill Marlar who are four (4) and three (3) years of age respectively. Appellants filed the petition alleging that by a judgment of a Court of Domestic Relations for Knox County, Tennessee, a certified copy of which they filed as a part of the petition, they were awarded the custody of the children, and appellee is in possession of said children unlawfully and refuses to deliver the children to them.

The Tennessee judgment shows that in the action of Merlene Marlar (Howard) versus her then husband, Harrison Marlar, a divorce was granted to one of the parties, and appellee was given custody and control of the children. Immediately thereafter, appellee and her children moved to, and continuously thereafter have been residents of, Kentucky, the former having intermarried with Ralph Howard, a resident of Harlan County. After the children became legal residents of the State of Kentucky, their father, Harrison Marlar, filed a 'cross-petition' against appellee in the original divorce action, whereby he sought a modification of the judgment in respect to the custody of the infants. Appellee failed to appear or make defense to the cross petition, whereupon the allegations contained therein were taken as confessed and an order was entered purporting to divest her of the right to the custody of the children and to vest such right in appellants jointly.

Whilst the record is silent as to the reason underlying the action of the court in sustaining the demurrer to and dismissing the petition for a writ of habeas corpus, we assume it to have been upon the theory that at the time the Tennessee Court attempted to place the custody of the children with the grandparents, it did not have jurisdiction of the children because they were citizens and residents of Kentucky.

This leads us to the question as to whether appellants' petition is sufficient to show they have a superior legal right of custody to either a legal or the natural right of the mother.

When the original judgment vesting appellee with the custody of her children was entered, she and the children were bona fide residents of Knox County, Tennessee; and the court, having jurisdiction of the subject matter, likewise had jurisdiction of the parties; but, when the modified order was entered, the children were legal residents of Kentucky, although it appears from the judgment that appellee was before the court by service of process. Therefore, we now must decide whether a court, which properly acquired jurisdiction of children for the purpose of determining their custody, forever retains jurisdiction by having exercised control in the first instance.

Since the petition did not aver that the laws of Tennessee provide that its courts shall retain jurisdiction in instances of this character, and it does not appear that the court attempted to retain jurisdiction by specific edict, it is unnecessary for us to determine what effect, if any, the existence of either of those contingencies might have on the answer to the question presented.

An order awarding the custody of a child is final, although the question of change in custody, if on a showing of a change in condition, may be entertained at a later date by the same court, or by any other court having jurisdiction of the person of the child at the time a change is sought. Although a court, into whose jurisdiction a child has moved, may alter the award upon a showing of a change in condition; nevertheless, it will give full faith and credit to the original judgment.

In the light of the above authorities, we are constrained to hold that the Tennessee Court did not have jurisdiction of the children of appellee at the time it attempted to vest their custody in appellants; wherefore, the Court properly sustained the demurrer to the petition.

The judgment is affirmed.

226 S.W.2d 755, 312 Ky. 209


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