Callahan v. Callahan

• Decision Date: 25 January 1944
• Citation: 296 Ky. 444
• Parties: Callahan v. Callahan.
• Court: United States State Supreme Court — District of Kentucky

296 Ky. 444

Callahan v. Callahan.

Court of Appeals of Kentucky.

January 25, 1944.

1. Divorce. — Generally, decree of court of sister state regarding custody of child of divorced parents is entitled to "full faith and credit" only in so far as there has been no material change in facts and circumstances upon which foreign decree was based.

2. Divorce. — A state can exercise through its courts jurisdiction to determine custody of children in divorce case only if domicile of child is within the state.

3. Divorce. — Where daughter was living with mother in Kentucky when Indiana court granted father divorce from mother, daughter's domicile was not in Indiana, and that part of Indiana divorce judgment awarding custody of daughter to father was of no effect. KRS 405.020.

4. Habeas Corpus. — Where husband obtaining judgment in Indiana granting divorce and awarding him custody of child while mother and child were in Kentucky, brought habeas corpus proceedings in Kentucky to obtain custody of child and record before court showed conclusively that wife, having good home with father, should have custody, there being no question raised as to her character or fitness, husband was not entitled to custody of child.

5. Parent and Child. — Custody of child of tender years should be awarded to mother unless it is shown that she is unsuitable or unfit to have charge of it, or through some peculiar circumstance is unable to furnish a good home.

Appeal from Leslie County Court.

Will C. Hoskins for appellant.

M.C. Begley for appellee.

Before V.A. Maggard, Judge.

OPINION OF THE COURT BY JUDGE CAMMACK.

Affirming.

Lloyd and Lucy Callahan were married in Leslie County, in 1936. They lived there until February, 1942, when they moved to Indiana. They have a child named Alice, who is now about six years of age. In November, 1942, Lucy Callahan came back to her home in Leslie County. She returned to Indiana in February, 1943, and brought Alice back home with her. In the spring of 1943 Lloyd Callahan filed suit for divorce in the Franklin County, Indiana Court. On September 6, 1943, he was granted a divorce on constructive service, and was awarded the custody of Alice, notwithstanding the fact the child was not in Indiana at the time. In December, 1943, he instituted this habeas corpus proceeding before the county judge of Leslie County for the purpose of obtaining the custody of the child. He pleaded and offered in evidence a copy of the Indiana judgment, which was not properly authenticated (KRS 422.040), but there was no objection interposed...