(dissenting.)
The court affirms a decree which permitted a stepfather to adopt a boy without the natural father’s consent. Before stating the reasons which impel me to dissent, I find it necessary to summarize the facts in order to supply some details not contained in the majority opinion.
The natural parents of the child who is the unfortunate subject of this litigation separated June 25, 1949, while living in the District of Columbia. They entered into a written contract February 17, 1950, concerning the custody, maintenance and education of their small son. By its terms the father agreed to make satisfactory provision for the care and education of the child. Apparently he has done so. As to custody, it was agreed as follows:
“ * * * The party of the first part [the mother] has and is to continue to have the entire control and custody of the child * * * but the said child may visit and see the party of the second part [the father] as they may desire and as the parties hereto may agree.”
On May 29, 1950, a state court in Florida granted an absolute divorce at the suit of the husband. Its judgment recited the presence of the husband, his witnesses and counsel, and counsel for the wife. It also contained, in addition to the decree of divorce, the following: “The property settlement agreement between the parties executed the 17th day of February, 1950, is hereby recognized, approved and by reference made a part of this Final Decree.”
*850The child’s mother remarried in 1951. Her second husband, the child’s stepfather, filed May 6, 1952, in the United States District Court for the District of Columbia a petition for adoption in which the mother joined merely to indicate her consent.1 She stated therein that the child had lived with her continuously since February 17, 1950, the date of the contract by which his natural father surrendered to her “entire control and custody,” subject to such visitation as she might permit.
The natural father did not consent to the proposed adoption.2 The District Court nevertheless, granted the petition and decreed adoption, holding “that the consent of the natural .father to the adoption may be dispensed with because he has been permanently deprived of custody of the adoptee by Court order * * 3 On the natural father’s appeal from the decree, my brothers have affirmed. In my opinion, the natural father had not been permanently deprived of his son’s custody by a valid court order, and therefore the District Court erred in decreeing adoption without his consent.
The natural father vigorously argues to us that the Florida court lacked jurisdiction to award custody because, when it assumed to do so, the child was neither domiciled nor present in the state. My brothers of the majority decline to ‘consider the point for the reason the question was not raised in the District Court. They also reject the point as immaterial, saying, “[A] lack of jurisdiction in the Florida court in this case could in no way affect the jurisdiction of the courts of the District of Columbia.” The majority also suggest the natural father “may well be estopped” to attack in this collateral proceeding the jurisdiction of the Florida court because he himself had invoked it.
The father’s attack in this court on the Florida court’s jurisdiction is an attack on the District Court’s jurisdiction, for the latter’s authority to decree adoption without the father’s consent depended directly and entirely upon the validity of the Florida judgment which deprived him of custody. To say that the father, by failing to raise the question in the District Court, waived the right to challenge the Florida court’s jurisdiction, is therefore tantamount to saying he waived the right to challenge here the District Court’s jurisdiction. The lack of jurisdiction of a federal court touching *851the subject matter of litigation cannot be waived by the parties and may be raised for the first time on appeal, as the father did here, or may be raised for the first time by the appellate court on its own motion. Treinies v. Sunshine Mining Co., 1939, 308 U.S. 66, 70, 60 S. Ct. 44, 84 L.Ed. 85; United States v. Corrick, 1936, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263; Fleming v. Richter, 2 Cir., 1947, 159 F.2d 792; Hock v. 250 Northern Ave. Corp., 2 Cir., 1944, 142 F.2d 435; Colorado Life Co. v. Steele, 8 Cir., 1938, 95 F.2d 535; Southern Pac. Co. v. McAdoo, 9 Cir., 1936, 82 F.2d 121.
Nor is the father estopped to attack the jurisdiction of the Florida court because he was the party who invoked it. In Grubb v. Public Utilities Comm., 1930, 281 U.S. 470, 50 S.Ct. 374, 74 L. Ed. 972, the appellant questioned the state court’s jurisdiction over the subject matter, although at the outset he had treated that jurisdiction as subsisting and had invoked its exercise. The Supreme Court said, 281 U.S. at page 475, 50 S.Ct. at page 377:
“* * * Of course, he is entitled to raise this question notwithstanding his prior inconsistent attitude, for jurisdiction of the subject-matter must arise by law and not by mere consent. * * * ”
In sum, these propositions seem clear: (a) that, although he did not do so in the District Court, the father may raise in this court the question of Florida’s jurisdiction; (b) that the question is material because it goes directly to the jurisdiction of the District Court to decree adoption without the father’s consent; and (c) that the father is not es-topped to raise the issue.
The next question, not discussed in the majority opinion, is whether the Full Faith and Credit Clause of the Constitution, Article IY, § 1, required the District Court to accept the Florida court’s judgment at its apparent face value, without questioning the jurisdiction of that court over the subject matter.4
A court which is asked to give full faith and credit to a judgment from another state is not constitutionally required to assume that the court which rendered the judgment had jurisdiction over the subject matter. On the contrary, it may examine for itself the question of the other court’s jurisdiction, and must do so when that jurisdiction is brought in question. This principle was restated by the Supreme Court in People of State of New York ex rel. Hal-vey v. Halvey, 1947, 330 U.S. 610, 614, 67 S.Ct. 903, 906, 91 L.Ed. 1133, as follows: “If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause.” The leading case of Thompson v. Whitman, 1873, 18 Wall. 457, 85 U.S. 457, 21 L.Ed. 897, was cited in support. Accordingly, the Full Faith and Credit Clause did not prevent the District Court, and does not prevent us, from considering and determining the question raised by the natural father concerning the Florida court’s jurisdiction to award custody. I think my brothers err. in declining even to consider it.
Examination of the question will reveal that no basis of jurisdiction in Florida was shown. In the Halvey case the Supreme Court summarized the Florida rulings concerning the bases of its courts’ jurisdiction to award custody. It said, 330 U. S. at page 615, 67 S.Ct. at page 906, note 2:
“* * * The power of the Florida courts to award custody of a child is dependent either on the child being legally domiciled in Florida or physically present there. Dorman v. Friendly [146 Fla. 732, 738, 1 So.2d 734, 736]; State ex rel. Clark v. Clark, 148 Fla. 452, 4 So.2d 517.”
From facts in the record before the District Court, it is clear this child was not legally domiciled in Florida. Both parents were domiciliaries of the Dis*852trict of Columbia before the husband went to Florida and stayed long enough to get a divorce. Whether he established a legal domicile in that state is immaterial, because the wife stayed here and so retained her domicile in the District,5 and the child took her domicile because he actually lived here with her continuously after the separation.6 It follows that the Florida court did not have jurisdiction to award custody on the basis of the child being legally domiciled in that state.
With domicile in Florida eliminated as a basis of jurisdiction in the divorce court to award custody, the question is whether the record before the District Court showed the child was physically in Florida at a time when his presence there would enable the court in that state to adjudicate concerning his custody. The record contains no showing whatever that the child was in Florida at any stage of the divorce proceeding, and the father insists in argument that he was not. The mother and stepfather do not say he was there.7 They rely upon the fact that the record does not show the child was not in Florida.
In the absence of a positive showing that the Florida court had jurisdiction, my view is. the District Court could not give full faith and credit to its judgment concerning custody by relying upon it as a reason for permitting a stranger to adopt the child without the father’s consent. I do not believe the District Court had the right to assume that, some years before, a Florida court had somehow ae-quired jurisdiction over a child who had since birth been domiciled in the District of Columbia. In the circumstances, the court here on its own motion should have required proof as to how the Florida court obtained jurisdiction before crediting its custody order. Mr. Justice Jackson concurred in the result in the Halvey case, 330 U.S. at page 616, 67 S.Ct. at page 907, “on the ground that the record before us does not show jurisdiction in the Florida court.” (Italics supplied.)
My conclusion is the child was not legally domiciled in Florida, nor physically present there; that, as a result, the Florida court had no power to award custody, and its judgment purporting to do so was and is invalid. Consequently, the District Court erred in decreeing adoption without the father’s consent, on the ground he had been judicially deprived of custody. No other statutory ground for dispensing with paternal consent was suggested, and no other was found by the District Court.
Accordingly its judgment should be reversed and the case should be remanded with instructions to deny the petition for adoption; or, at the very least, with instructions to hear proof and determine therefrom whether the child was in Florida at a time or times which gave the court in that state jurisdiction to enter a custody order. Perhaps the petitioners should also be permitted to show, if they can, the existence of any other statutory reason for dispensing with the father’s consent.
. Section 16-201, D.C.Code 1951, contains the following sentence:
“» * * No petition [for adoption] shall be considered by the court unless petitioner’s spouse joins in the petition or consents to the adoption.”
Manifestly, that is the reason the mother joined in the stepfather’s petition. There is, of course, no occasion for a mother to adopt her own child, who is naturally her heir at law and is bound to her in all respects by ties far stronger than a court can create by a decree of adoption. The stepfather is, therefore, the only real petitioner for adoption here.
. I am not impressed with the court’s suggestion that the natural father might be said to have consented to the adoption. He did offer to consent on condition that the trust fund he had established for his son’s maintenance be restored to him. The majority opinion says this may have been a condition he had no right to impose and possibly his conditional consent should be regarded as absolute. The father could logically require, I think, that the stepfather accept responsibility for the child’s maintenance along with adoption. Significantly, the mother and stepfather said they would withdraw the petition for adoption if that condition were imposed. The District Court did not regard the father’s offer as consent.
. This was purportedly done under § 16-202, D.C.Code, 1951, which in pertinent part is as follows:
“If adoptee is under twenty-one years of age, no decree of adoption shall be made unless the court shall find that the following persons have consented to the adoption: * * * the natural parents $ $
❖ * * * *
“The consent of a natural parent, or parents * * * may be dispensed with * * * where they have been permanently deprived of custody of the adoptee by court order * *
. The child himself was the “subject matter,” a living “res.”
. Restatement, Conflict of Laws § 28.
. Oxley v. Oxley, 1946, 81 U.S.App.D.C. 346, 159 F.2d 10; Restatement, Conflict of Laws § 32. The child’s domicile is to be determined under the law of this jurisdiction. Williams y. North Carolina, 1945, 325 U.S. 226, 230-231, 65 S.Ct. 1092, 89 L.Ed. 1577.
. On this subject, the brief filed in their behalf contains the following:
“ * * * That the parties were dom-
iciled in the District of Columbia, would not preclude their physical presence in Florida at a given time. It is neither admitted nor denied by petitioner’s counsel that the wife and child were in Florida during the period, as counsel has never inquired on this point, and is without Tcnowledge * * (My emphasis.)
This rather extraordinary statement seems to me to border on being an admission that the child was not in Florida during the critical period.