It is axiomatic that each state has the exclusive right to determine the status of persons found within its jurisdiction and is not bound in relation thereto by the laws or court decisions of other states. This right is in no respect affected by the full faith and credit clause of the national constitution. For this reason, it has been held times without number that a decree of a sister state awarding the custody of minors will not preclude a state within which they may later be found from making such disposition of them as their welfare may demand. The theory is that the interest of the child is paramount to the rights of the parents, and that, while the original adjudication of such rights may be res adjudicata as to the parents, the interest of the child is always open to further inquiry and determination. As to the rights of the parents, the general rule is that, when such rights have been declared by a court having jurisdiction of both parties, neither that court nor the court of a sister state will disturb the adjudication, unless there shall have subsequently arisen a change of conditions and circumstances affecting the welfare of the minor. The rule has been announced by our own court inStewart v. Stewart, 32 Idaho 180, 180 P. 165, *Page 523 where voluminous authorities are cited. In the absence of fraud or want of jurisdiction, where a decree of divorce in one state awards the custody of the child to one of the parties, the other may lawfully obtain possession of the child in another state only upon grounds which arose since that decree. Typical of the great majority of cases supporting this rule are: Exparte Wenman, 33 Cal. App. 592, 165 P. 1024; State v.District Court, 46 Mont. 425, Ann. Cas. 1916B, 256, 128 P. 590; State v. Giroux, 19 Mont. 149, 47 P. 798; Mylius v.Cargill, 19 N.M. 278, Ann. Cas. 1916B, 941, 142 P. 918, L.R.A. 1915B, 154; Wilson v. Elliott, 96 Tex. 472, 97 Am. St. 928,73 S.W. 946, 75 S.W. 368; Milner v. Gatlin, 139 Ga. 109,76 S.E. 860; Dixon v. Dixon, 76 N.J. Eq. 346, 74 A. 995;Haynie v. Hidgins, 122 Miss. 838, 85 So. 99; Kenner v. Kenner,139 Tenn. 211, 201 S.W. 779, L.R.A. 1918E, 587; Allen v.Allen, 40 Hun (N.Y.), 611 — all holding that as between the parties to the original action or proceeding, they are bound by the matters adjudged and determined in that action or proceeding, and cannot again retry the questions therein determined. To hold otherwise would be to say that a pair of contentious spouses, after the adjudication of their rights in one state, could, without any change of conditions affecting their fitness, successively litigate the same matter through the remaining forty-seven states of the Union, alternately spiriting the minors from pillar to post for the purpose of rewashing old linen. And, as was aptly said in State v.District Court, supra, the result would be that "the court of the state in which a controversy should arise subsequent to the date of the decree would sit as a court of review of the action of a court of a sister state having the same jurisdiction, thus according neither faith nor credit to its findings as to the fitness of the custodian selected by it."
An exhaustive brief on the subject will be found in the note supporting Geary v. Geary (Neb.), 20 A.L.R. 809.
It is objected that the decree of the Nevada court could not preclude the Idaho court from inquiring into what was the best interests of the minors, since the court had never *Page 524 acquired jurisdiction of their persons after the initiation of their residence in this state. The same objection could have been raised, even had the children actually been before the Nevada tribunal, for, as has already been said, each state has the exclusive right to determine the status of its residents and the former decree of a sister state respecting the custody of children has no extraterritorial effect. But, it must be remembered that this general rule does not apply to a contest between parties whose rights have been determined and where no new circumstances have developed warranting a reversal of the award in favor of the adverse party. The objection indirectly intimates that the order of the Nevada court respecting the children was a nullity, since that court had no jurisdiction of them. Counsel cite Seeley v. Seeley, 30 App. D.C. 191, 12 Ann. Cas. 1058; Payton v. Payton, 29 N.M. 618, 225 P. 576, andAnthony v. Tarpley, 45 Cal. App. 72, 187 P. 779. The Seeley case merely laid down the general rule. It did not suggest what would have been the outcome, if, at the hearing below, there had been a failure to show changed conditions. This case was decided in 1907. Twice since the same court in Heavrin v.Spicer, 49 App. D.C. 337, 265 Fed. 977, decided in 1920, andChurch v. Church, 50 App. D.C. 237, 270 Fed. 359, decided in 1921, has held that a decree of a state court in divorce proceedings awarding the custody of a child is res adjudicata as to all matters which were or might have been decided in that case between the parties, and that the adverse party, in seeking to regain the custody of the child, can rely only on grounds which arose since the decision in the divorce case.Payton v. Payton, while expressly declaring that a state has no legal control or interest in the children of another state, directly recognizes the power of the courts of such former state to adjudicate the rights of the parents with relation thereto, when both parties are before the court. Anthony v.Tarpley would seem to be in point, yet it makes no reference toEx parte Wenman, supra, and cites as authority on the "precise question," Wilson v. Elliott, supra, which expressly requires a change in circumstances *Page 525 before a re-examination of the right to custody. On the other hand, it would seem fairly well established that where the parents go into a court of general jurisdiction, the children residing in another state, the court has jurisdiction, as between them, to award the custody. While it is true that parents have no property right in children, they do have equitable rights as between themselves, growing out of and incident to the marital status; and the court in dealing with this status has power to fix their respective rights thereunder. As was said in Anderson v. Anderson, 74 W. Va. 124,81 S.E. 706:
"That the children may not have been within the jurisdiction of the court at the time of the institution of the suit or entry of the decree is immaterial, since the parties litigant were the father and mother, and the cause of action, the right of custody, in so far as it affected the children, was between them, and the court had full jurisdiction over them with power to render a personal decree."
To the same effect are State. v. Hall (Mo.), 257 S.W. 1047;State v. Rhoades, 29 Wash. 61, 69 P. 389; Payton v. Payton,supra; Power v. Power, 65 N.J. Eq. 93, 55 A. 111.
I am therefore of the opinion that the decree of the Nevada court was an adjudication of the respective rights of the instant parties at the time, and that the trial court, without a showing of changed conditions, had no authority to re-examine the issue of either party's fitness. The Nevada court found that petitioner was a fit and proper person to have the care, custody and control of the children. Not a word in the record evidences a deterioration in that respect, since all the adverse evidence adduced was restricted to conditions prior to the entry of the divorce decree. It was error to re-examine identical issues already determined between the parties.
The judgment should be reversed, with instructions to the trial court to enter a judgment in petitioner's favor.
Justice Budge authorizes me to say that he concurs in the views expressed.
Petition for rehearing denied. *Page 526