In Re Memmi

California Court of Appeal Jun 12, 1947 No. Crim. 4147Published

Before: White

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Holding. The court held that in the absence of evidence showing changed circumstances or the father's unfitness since the entry of a valid New York custody decree, principles of comity require California courts to recognize and enforce the father's right to custody.

Issues

Whether a California court must recognize a New York custody decree when the child was brought into California in defiance of that decree.
Whether the New York custody decree is res adjudicata in the absence of a showing of changed circumstances affecting the child's welfare.

Disposition. reversed

Quotations verified verbatim against the opinion

“In the absence of any showing that since the entry of the decree under which petitioner was granted custody of the child he has become an unfit or unsafe person to have the care and control of his minor child”

“the decision of the New York court must be held res adjudicata until such change in petitioner’s condition, or in circumstances affecting the welfare of the child is shown.”

“the record before us shows that the child was brought to California by respondent in defiance of the decree of a sister state, awarding its custody to petitioner.”

[296]

WHITE, J.

This is a proceeding in habeas corpus brought to recover the custody of a minor child of petitioner and respondent allegedly at present unlawfully detained by the latter. The writ having issued, a return was made thereto by respondent who has possession of the child and the matter is now before us to determine as between petitioner and respondent, the right to the custody of said minor, Gracie Ann Memmi.

The history of the case as disclosed by the record is that petitioner Joseph Memmi and respondent Marion B. Whit-taker (formerly Marion B. Memmi) were married to each other February 22, 1941, and the above-named minor child, now five years of age, was born as the issue of said marriage.

It further appears that in a habeas corpus proceeding instituted by petitioner in the Supreme Court of the State of New York, county of Erie, directed to respondent herein, she made a return thereto, and the court having taken evidence made its order on December 23, 1943, sustaining said writ of habeas corpus. In said proceeding the court found “that the best interests and welfare of said infant (the minor child herein) require that the petitioner (petitioner herein) should have the care, custody and . control of her, the said Gracie Ann Memmi, and that the said Joseph Memmi is entitled to the care, custody and control of the said Gracie Ann Memmi.” Based upon these findings, the New York court made its order that respondent herein “forthwith surrender the custody” of said minor child to the petitioner, Joseph Memmi. On the following day, Decemeber 24, 1943, the order was served upon respondent’s attorney. The sheriff of Erie County, New York, attempted to make personal service of said order on respondent herein, but without success. In January, 1944, respondent and the minor child removed to Pasadena, California, where the child has since been domiciled. In March, 1944, respondent returned to Buffalo, New York, to answer an indictment returned against her on an unrelated matter, and on March 22, was personally served at Buffalo, New York, with a copy of the aforesaid order of December 23, directing her to deliver said minor child to petitioner.

Because of respondent’s failure to comply with such order the New York court on April 11, 1944, issued an order to show cause directed to respondent herein to show cause why she should not be adjudged in contempt of court and punished accordingly. Due service of such order to show cause was

In Re Memmi

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WHITE, J.

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