People ex rel. Koelsch v. Rone
| Citation | 3 Ill.2d 483,121 N.E.2d 738 |
| Decision Date | 23 September 1954 |
| Docket Number | No. 33179,33179 |
| Parties | The PEOPLE ex rel. Leo J. KOELSCH, Appellant, v. Doris RONE et al., Appellees. |
| Court | Supreme Court of Illinois |
Ira J. Covey, Sr., Stephen J. Covey, and William H. Young, Peoria, for appellant.
No appearance, for appellees.
Leo J. Koelsch, in the name of the People, filed a petition in the circuit court of Peoria County for a writ of habeas corpus, to secure custody of his minor child from his former wife. After a hearing the court remanded the child to the custody of its mother. Relator seeks direct review by this court, a constitutional question under the full-faith-and-credit clause of the Federal constitution being involved.
On April 23, 1952, relator and his wife Doris, hereinafter called respondent, were divorced in the State of Massachusetts, and custody of their minor child was awarded to the mother. She thereafter remarried and moved to Illinois, taking the child from Massachusetts without obtaining the consent of relator or the court. On September 10, 1953, relator filed a petition in the Massachusetts court, seeking to obtain custody of the child. Notice by registered mail was sent to respondent fourteen days prior to the return day, and was tendered to her by the mailcarrier at her residence in Peoria. She refused to accept delivery of the notice. On October 1, 1953, the Massachusetts court amended the divorce decree by granting custody of the child to relator.
At the hearing on the present petition, held on October 30, 1953, no evidence was adduced showing a change in circumstances since the preceding October 1, when the Massachusetts decree was amended. The record indicates that the circuit court's decision is based upon findings that whatever change of circumstances occurred since the time of the original decree was insufficient to warrant changing custody from the mother, and that respondent did not receive sufficient notice of the hearing on the petition to change custody. No brief has been filed in this court on behalf of respondent.
We think the order of the Massachusetts court, modifying the divorce decree and awarding custody to relator, must be recognized and given full faith and credit by the courts of this State if the Massachusetts court then had jurisdiction over the parties and subject-matter. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133. That such jurisdiction was present is clear from the nature of the decree modified. In so far as they provide for custody of children, such decrees of Massachusetts courts, like those of our own courts, are subject to future modification. The court which entered the decree may change the custody from time to time, as the best interests of the child may require; and the fact that the child has since been removed from the State and beyond the reach of its process does not deprive the court of jurisdiction to exercise such reserved power. Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518. In the present case jurisdiction had been acquired by virtue of process in the original suit, and the mother took custody subject to the court's retaining...
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