In Re Chandler

California Court of Appeal Jan 15, 1940 No. Crim. 3308Published

Before: White

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Holding. The court held that a California superior court lacks jurisdiction to determine the custody of minor children who were legally domiciled outside the state prior to the commencement of a divorce action, and therefore cannot hold a father in contempt for failing to produce them.

Issues

Does a California court have jurisdiction to determine the custody of children who were domiciled outside the state prior to the filing of a divorce action?
Can a court order a parent to bring children from a foreign jurisdiction into the state for the purpose of a custody determination when the children were already domiciled elsewhere?
May a court hold a parent in contempt for failing to produce children from a foreign jurisdiction when the court lacks underlying jurisdiction over the children's custody?

Disposition. Petitioner discharged from custody.

Quotations verified verbatim against the opinion

“Respondent concedes that it is well settled that our courts have no authority to award custody of children not within their territorial jurisdiction”

“the court is without power to punish such husband for the doing of such legal and lawful act.”

“it does not lie within the power of any court of this state to send him to jail for doing that which he was legally and lawfully entitled to do, nor to require him to go outside of this state to undo such lawful act.”

WHITE, J.

Petition for a writ of

habeas corpiis.

The facts are uncontroverted, and so far as pertinent hereto are

[584]

that during November, 1938, petitioner and his wife separated, and by mutual consent petitioner took custody of their three minor children. At the time of the separation petitioner, his wife and children were all residents of the county of Los Angeles in this state. After retaining exclusive possession of the children until about July 2, 1939, petitioner changed their domicile to the State of Texas, but retained his own residence in California. Since the marital separation petitioner has been the sole support of such children. He avers that at the time he removed the children to Texas he was unaware that his wife contemplated bringing an action for divorce. However, on July 17th, some two weeks after petitioner had changed the domicile of said children, his wife filed an action against him for divorce in the Superior Court of the County of Los Angeles. In this action the wife sought custody of the children and money for her and their support.

On the day the divorce action was filed the superior court, pursuant to the provisions of section 138 of the Civil Code, issued an order directing petitioner to appear before such court to show cause why, among other things, his wife should not have custody of the children

pendente lite.

Pursuant to such order, petitioner appeared in court, and following a hearing at which it was established that the children were residing in Texas since a date prior to the filing of the divorce action and were being supported by petitioner, objection was made to the superior court’s making any order

in re

custody of children on the ground that the latter at all times prior to and at the time of the institution of the divorce action resided outside the State of California, and that the Superior Court of Los Angeles County was without jurisdiction to make any order concerning their custody. Following the submission of this issue, the court, on August 28, 1939, made an order requiring petitioner to bring said children from the State of Texas and produce them in the Los Angeles superior court on or before September 18, 1939. For his disobedience of this order petitioner was adjudged in contempt of court, and on November 17, 1939, was committed to the county jail until such time as he “returns the children to the jurisdiction of said court”.

In Re Chandler

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WHITE, J.

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