(dissenting).
In the divorce decree filed February 2, 1954, the District Court granted custody of the two minor children to the wife with rights of visitation to the husband. There was no provision for alimony but the husband was ordered to pay $20 per week for the support of the children, then two and three years of age. The order did not include a provision requiring the wife to keep the children in the District of Columbia. But it is clear from the record that the District Judge intended, and the parties fully understood, that this requirement was a condition for the payment of the support money. The wife nevertheless removed the children from the District.
It is undisputed that the provision directing the husband to pay support money was based upon a determination of the children’s needs and his ability to pay. There is no finding or evidence in the record upon the divorce decree that either their needs or his ability were contingent on where they lived, or that the proscription against removing them from the District of Columbia was required by any considerations related to their welfare.
At the hearing on the husband’s motion to vacate the judgment for arrearages, etc., the court made clear that it had originally proscribed removal of the children on the ground that the husband’s right “ ‘To visit with the said children at reasonable times and places' * * * means in the District of Columbia, and not going up to Massachusetts.” But when the wife’s counsel reminded the court that only visitation rights were at stake, the court responded:
“No, there is more than that to it. If you were dealing only with that aspect of the case, then that would be simple. But there is something else again. It is a question as to whether or not there was fraud perpetrated upon the court. That is the point.”
terms as are just, the court may relieve a party of a final judgment for “any other reason justifying relief.” See Klapprott v. United States, 335 U.S. 601, 614-615, 69 S.Ct. 384, 93 L.Ed. 266, and Erick Rios Bridoux v. Eastern Air Lines, Inc., 93 U.S.App.D.C. 369, 214 F.2d 207, certiorari denied 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647. *505and later:
“ * * * I am only concerned with one aspect, I am not concerned with the parties. I am only concerned with whether I was put upon.”
There are no findings nor is there any evidence that the proscription against removal was required by, or even consistent with, the best interests of the children.1 I am willing to assume, however, that that proscription, as well as the provision for support money, is separately valid and enforceable in contempt pro■ceedings. But I submit that the two requirements may not be linked, and the second made contingent upon the first, without consideration of the children’s welfare. Without such consideration, the effect is to punish the wife, without benefit of contempt proceedings, by automatically depriving the children of needed support. This, it seems to me, contravenes fundamental public policy which holds that the interests of children override all other considerations. Children cannot be used as levers of enforcement or punishment any more than they can be “used as pawns in a game of legal chess to work out conceptions of status and property rights.” Boone v. Boone, 1945, 80 U.S.App.D.C. 152, 154, 150 F.2d 153, 155. Accord, Kaiser v. Kaiser, 1958, 352 Mich. 601, 90 N.W.2d 861.
Accordingly, many jurisdictions hold that “it is not * * * proper to deprive the children of the support to which they are entitled because of the supposed misconduct of the mother.” Pendray v. Pendray, 1951, 35 Tenn.App. 284, 245 S.W.2d 204, 206. This is true even though the misconduct places her in contempt of court. In Commonwealth ex rel. Firestone v. Firestone, 1946, 158 Pa. Super. 579, 45 A.2d 923, 924, for instance, the mother permanently removed the children to Florida in “defiance of the court” and “of the [visitation] ‘rights of the father.’ ” On the father’s petition, the trial court suspended his obligation of support while the child was out of the state. The Superior Court reversed, saying:
“[T]he duty of the father to support a three year old child is well nigh absolute. Here the [trial] court relieved the father of his duty to support because of some conduct of the mother not affecting her fitness for custody * * *. Custody and support are two different things. If this mother, by depriving the father of the right of visitation, were guilty of contempt of court (which we do not hold), it could subject her, but never the child to penalties; and it does not relieve the father of the duty to support the child under circumstances such as these.” 158 Pa. Super, at page 580, 45 A.2d at page 924.
See also Elkind v. Harding, 1957, 104 Ohio App. 322, 143 N.E.2d 752, 753, where the court refused in “the best interests of the child” to construe a divorce decree in such a way that the father’s duty to support a child would be conditioned upon the mother’s obligation to keep the child within the jurisdiction.
It seems to me that my view also follows this court’s decision in Maschauer v. Downs, 1923, 53 App.D.C. 142, 289 F. 540, 543, 32 A.L.R. 1461. There the mother departed the family home without just cause, taking the minor children with her. We held the father liable to a third person for necessaries supplied to the children, saying, “We do not think the conduct of the mother, if improper, should be charged to them [the children] .” 2
*506And where, as here, the father’s ability to support his children has been established, his duty to support them is not diminished or terminated because the child is properly cared for by others. “A father of sufficient means must support his child, and it is not a defense that either the mother-custodian, or the child itself, has independent means.” Commonwealth ex rel. Firestone v. Firestone, supra. Accord, Pendray v. Pendray, supra; Gaidos v. Gaidos, 1956, 48 Wash.2d 276, 293 P.2d 388. See Keezer, Marriage & Divorce § 727 (Morland ed. 1946); Madden, Domestic Relations 384 (1931).
Finally, it is true that in the instant case the mother presented no evidence showing the children’s needs while they were in Massachusetts. But once a support order is entered, any party seeking to modify it must show new circumstances justifying the change. Commonwealth ex rel. Orlowitz v. Orlowitz, 1953, 172 Pa.Super. 481, 94 A.2d 366; Keezer, Marriage & Divorce § 730 (Morland ed. 1946). Moreover, protection of the children’s interest does not depend upon the principles which ordinarily govern adversary proceedings. The court stands in loco parentis to the children. Accordingly, where, as here, the parties have failed to present evidence for determining the children’s interests, the court must take the initiative by requiring such evidence.
I would therefore set the appealed orders aside and remand the case to the District Court for reconsideration upon a supplemental record and findings respecting the interests of the children. I would also defer decision on the issues relating to the judgment for arrearages and the effect of Kephart v. Kephart, 1951, 89 U.S.App.D.C. 373, 193 F.2d 677, certiorari denied 1952, 342 U.S. 944, 72 S.Ct. 557, 96 L.Ed. 702.
. “That the welfare of the child is the primary criterion in custody cases has been reaffirmed many times in this court * * Bartlett v. Bartlett, 1954, 94 U.S.App.D.C. 190, 192, 193, 221 F.2d 508, 5.11, citing cases.
. Accord: Aaron v. Aaron, 1957, 228 Ark. 27, 305 S.W.2d 550, 552 (father denied visitation rights: “It is always the duty of the father to support a minor child, ‘and no conduct on the part of his wife could free him from his duty’.”); Gaidos v. Gaidos, 1956, 48 Wash.2d 276, 293 P. 2d 388, 390 (“The extent of a parent’s duty to contribute to the support of his minor child depends upon the child’s need *506and the parent’s ability to pay; it is not a quid pro quo for the visitation privilege.”); Hurt v. Hurt, 1953, 351 Ill.App. 427, 115 N.E.2d 638; White v. White, Sup.Ct.1954, 205 Misc. 1042, 130 N.Y.S.2d 773; Baker v. Baker, 1950, 119 Utah 37, 224 P.2d 192; Note, 33 Texas L.Rev. 749 (1955). Most jurisdictions hold that a father’s obligation to support his children is not terminated by the mother’s misconduct. 39 Am.Jur. Parent & Child § 40 (1942).