Original proceeding by writ of habeas corpus to obtain the custody of two minor children.
On the application of one Stephen Enke made July 2, 1955, a writ of habeas corpus issued out of this court directed to one Jean S. Baueus to inquire into the custody of Max Sieben Enke and Karen Jean Enke, the minor children of Stephen Enke and Jean S. Baueus, formerly Jean S. Enke. On July 6, 1955, in obedience to this writ the respondent, Jean S. Baueus, made return thereto (1) by motion to quash, and (2) without prejudice to that motion by pleading on the merits. To this return a traverse has been made on the part of the petitioner. The matter has been argued orally and on briefs submitted by *356both the petitioner and the respondent. Submission has now been had for our opinion and judgment.
Hereafter we shall refer .to the petitioner, Stephen Enke, as the father, to the respondent, Jean S. Baucus, as the mother.
The material facts we gather from the return and the traverse thereto and from the exhibits submitted at the hearing. They follow.
The mother, then Jean Sheriff, and the father, Stephen Enke, were married in 1940 at Helena, Montana. Subsequently their residence was at Los Angeles, California, where they made their home until May 18, 1944, or thereabouts. To this union there were born the.two children who are the subjects of this proceeding. Up to May 18, 1944, or shortly thereafter, their domicil and that of each of their parents as well was in California.
There on April 29, 1944, the father and mother came to the parting of their ways. As of that date a settlement agreement containing this paragraph was executed by them, viz.,
“The parties are the parents of Max Sieben Enke, aged two and one-half years, and Karen Jean Enke aged three and one-half months. The children are of tender years and husband recognizes that it is natural and proper that wife should have their custody and agrees that wife shall have the sole custody of said children and each of them. In making this agreement husband understands that it is the intention of wife to reside with the said children at least in the immediate future in the State of Montana and that she will take the children to Montana shortly after the execution of this agreement. Husband shall have the right to correspond with the children and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with wife for such visits.”
Subsequently the mother sued for divorce in the Superior Court of Los Angeles County, California, and thereafter on May 18, 1944, was granted by that court upon the default of the father an interlocutory judgment of divorce, in which there is found this decretal paragraph:
*357“It is further ordered and adjudged that Plaintiff [Jean S. Enke] shall have the sole custody of the minor children Max Sieben Enke, aged 2% years, and Karen Jean Enke, aged 3% months, and the right to determine their place of residence, and that Defendant [Stephen Enke] shall have the right to correspond with the said children, and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with Plaintiff for such visits, and this court reserves the right to make appropriate orders for the support of the children.”
By the final judgment in this matter, entered on May 22, 1945, the provision here for the custody of these children was adopted, and thereby “made binding on the parties affected thereby.”
Consistent with the settlement agreement of April 29, 1944, and the consent of the father given therein, and with the interlocutory judgment of May 18, 1944, the mother returned in May 1944 with her two children to Helena, Montana, where ever since she has made her home. There in 1947 she was married to one John Baucus, with whom she has since lived at Helena and on an adjacent ranch in Montana, as his wife, and with whom there since this marriage she has made a home for the children,'Max and Karen, and also her son by her second marriage, John Frederick Baucus, born September 19, 1949.
About October 1, 1954, the father applied to the California Court at Los Angeles for a modification of the interlocutory decree of May 18, 1944, that he might have the custody of his children during July of each year. Notice of these proceedings was given the mother by service upon her at Helena in Montana. She responded by authorizing an attorney of her selection at Los Angeles to appear for her and resist the father’s application. She also offered affidavits when that application was heard, which were received in evidence. Her attorney appeared at the hearing and, we shall assume, cross-examined the father and his witnesses on her behalf.
The mother herself did not in person attend this hearing. *358Neither of the children was in California at any time after May 1944. No notice or process designed to bring them before the California Court was given or served upon them so far as this record discloses. Neither appeared personally or otherwise at the hearing.
Specifically, neither of these children was in California at the time of the hearing, or when the order modifying the interlocutory decree was made November 23, 1954.
On that date, however, the California Court, proceeding under Cal. Civ. Code, section 138, modified its judgment of May 18, 1944, to provide:
“* * * The defendant may have the physical custody of the minor children for the month of July of each year, beginning July, 1955; the defendant is ordered to provide the necessary transportation to and from the home of the plaintiff. The plaintiff is restrained from registering the minor children in school or elsewhere in any name other than their natural surname of Enke. * '* *”
Subsequently the father sought to have the children, Max and Karen, turned over to him on July 1, 1955. The mother refused to surrender them. This litigation followed.
In our consideration of this matter we are met first with the mother’s motion to quash the writ issued and to dismiss these proceedings. In our view this motion is not well taken. It is accordingly denied.
No particular formality is required to frame a petition sufficient to warrant the issuance of the writ of habeas corpus. Nor are the proceedings themselves marked by adherence to form. State ex rel. Giroux v. Giroux, 19 Mont. 149, 155, 156, 47 Pac. 798; McDowell v. Gould, 166 Ga. 670, 144 S. E. 206; 39 C. J. S., Habeas Corpus, section 80, pages 626, 627, section 82, page 635; 29 C. J., Habeas Corpus, section 158, pages 142, 143. Measured by the rule of these authorities we find the petition upon which the writ here issued sufficient and that E. C. M. 1947, section 94-101-2, is satisfied.
Moreover, when the writ has issued the function of the petition *359or application, therefor is fulfilled. 39 C. J. S., Habeas Corpus, section 80, page 629; 29 C. J., Habeas Corpus, section 158, page 143. Thereafter the pleadings or papers before the court whereon the.matter is heard are the return'made to the writ, which serves the purpose of a complaint'-on the part of-the respondent, and the traverse or other answer to that return-tendered by the petitioner. ’ On these papers- the court has jurisdiction to proceed. In re Collins, 151 Cal. 340, 342, 90 Pac. 827, 91 Pac. 397, 129 Am. St. Rep. 122; State v. Olsen, 53 Idaho 546, 549, 26 Pac. (2d) 127; 39 C. J. S., Habeas Corpus, section 88, pages 651, 652; 25 Am. Jur., Habeas Corpus, section 124, pages 235, 236. Without . more then wé turn directly to the 'merits.
There the question for decision is: Did the California Super- ■ ior Court at Los Angeles have jurisdiction on November 23, 1954, to modify the interlocutory judgment of May 18, 1944, and accordingly give the custody of Max and Karen Enke to the father for the month of July of each year? We conclude, the California Court had no such jurisdiction, that its' order of November 23, 1954, was therefore void.
To be specific: When in May 1944 these children were brought by'their mother from California to Helena, Montana, there to make their future home with her she acted in entire harmony with the California decree, which gave her the sole custody of these children and the right to determine their place of residence. Restatement, Conflict of Laws, sections 146, 32, pages 211, 57. She acted also with the consent and approval of the father as expressed in the settlement agreement of April 29, 1944.
Accordingly then she lost her California domicil, and acquired a new domicil of choice in Montana. Montana has been her domicil ever since. In re Coppock’s Estate, 72 Mont. 431, 434, 435, 436, 234 Pac. 258, 39 A. L. R. 1152; Restatement, Conflict of Laws, sections 29, 9, 15, pages 54, 17, 32. Likewise in May 1944 the domicil of Max and Karen Enke also was lawfully fixed in Montana. Their domicil too has remained here *360ever since; for it is settled law that minor children whose parents are divorced take the domicil of the parent to whose custody they have been legally given. R. C. M., 1947, section 61-121; In re Metcalf’s Estate, 93 Mont. 542, 546, 19 Pac. (2d) 905; Restatement, Conflict of Laws, section 32, page 57. Moreover, these children have never since been physically present within the State of California nor for that matter so far as this record shows out of the State of Montana.
In these circumstances the fundamental question whether the California Court had jurisdiction on November 23, 1954, to make a valid order awarding the physical custody of these children to the father has been answered by different courts, treatises and learned authors in at least three different ways. The California Supreme Court itself in Sampsell v. Superior Court, 32 Cal. (2d) 763, 777, 197 Pac. (2d) 739, 748, has recently summarized these divergent views with authorities noted to support each in a paragraph which merits quotation here:
“Several theories have been advanced with respect to the correct basis for jurisdiction over the subject matter of a child custody proceeding. According to one theory jurisdiction over children’s custody is based on in personam jurisdiction over the children’s parents. Anderson v. Anderson, 74 W. Va. 124, 126, 81 S. E. 706. Another theory regards the question of custody as simply one of status and as such subject to the control of the courts of the state where the child is domiciled. Rest. Conflicts 117, 148; see Goodrich, Custody of Children, 7 Corn. L. Q. 1, 2; 2 Beale, Conflict of Laws, page 717; Dorman v. Friendly, 146 Fla. 732, 740, 1 So. (2d) 734. A third theory requires the child to be physically present within the state, on the ground that the basic problem before the court is to determine what the best interest of the child is, and the court most qualified to do so is the one having access to the child. See Stumberg, Children and Conflict of Laws, 8 Univ. Chic. L. Rev. 42, 55-56; Stumberg, Conflict of Laws, page 299; Sheehy v. Sheehy, 88 N. H. 223, 225, 186 A. 1, 107 A. L. R. 635.”
Clearly in the Sampsell case where both parents as at bar *361were themselves before the court, California leans toward the second of these theories, if in truth its Supreme Court does not adopt that premise outright as the foundation for its decision there. For it appears beyond any question from that opinion that California’s jurisdiction in that case was bottomed upon the finding of a domicil for the child in California as distinguished from the personal jurisdiction which the lower court undoubtedly had over the parents, but which the California Supreme Court said was not enough. See Sampsell v. Superior Court, supra, 32 Cal. (2d) particularly at pages 773, 781, 197 Pac. (2d) at pages 746, 751.
Whether we are right or wrong, however, in our understanding of the Sampsell case, our own conclusion at this point is that the second of these statements of the principle of law here involved is sound, and should be made the rule of our decision in this case. For this conclusion there are solid reasons, as we see them, not the least of which is that in Talbot v. Talbot, 120 Mont. 167, 181 Pac. (2d) 148; and Thrift v. Thrift, 54 Mont. 463, 171 Pac. 272, this court has already committed itself to the doctrine that the state of a minor child’s domicil is the state vested with jurisdiction to control his custody.
In the Talbott case the facts differed from those of the controversy at bar, but the underlying principle, which determined the disposition of the writ of habeas corpus issued in that case, was nevertheless the same rule of law we apply in this proceeding. There Washington was the state of the domicil of the child whose custody was in issue, because Washington was the domicil of the parent (the mother) with whom the child lived after the separation of her parents and pending the divorce action' brought at Seattle against the father. See Talbot v. Talbot, supra, 120 Mont, at pages 172, 173, 181 Pac. (2d) at pages 150, 151. The authorities generally are in agreement here. Wear v. Wear, 130 Kan. 205, 222, 285 Pac. 606, 72 A. L. R. 425; Elliott v. Elliott, 181 Ga. 545, 182 S. E. 845; Callahan v. Callahan, 296 Ky. 444, 177 S. W. (2d) 565; Boardman v. Boardman, 135 Conn. 124, 138, 62 A. (2d) 521, 13 A. L. R. (2d) 295, and an*362notation at 306, pages 308 to 310; Restatement, Conflict of Laws, section 32, pages 57, 58; R. C. M. 1947, sections 61-105, 61-106; 1 Beale, Conflict of Laws, Ch. 2, section 32.2, page -216. Compare Cheever v. Wilson, 9 Wall. 108, 124, 76 U. S. 108, 124, 19 L. Ed. 604, 608. It followed upon these facts that Washington had jurisdiction to' award the custody of the child to the mother; and this court so held.
In Thrift v. Thrift, supra, the child of the parties lived with the father in Indiana, which was accordingly the state of his xlomicil. It followed. upon these facts that the Montana court had no jurisdiction to award the custody of this child to the mother; and this court so held.
In short, by our finding here that Max and Karen Enke have been domiciled in Montana since May 1944 we have forecast the necessary conclusion consistent with our own precedents in the Talbott and Thrift cases that the California Court • on November 23, 1954, was wholly without jurisdiction to enter any order touching their custody, because neither was then in, or domiciled within the State of California. But we do not pro- ■ pose to rest our judgment in this case alone upon the narrow premise of our own decisions.
In the Restatement, Conflict -of Laws, section 117, page 177, we find the rule in point put in these words: “ A state can exercise through its courts jurisdiction to determine the custody of children * * * only if the domicil of the person placed under custody * * * is within the state.” Translated into the language of the controversy in hand this sentence means that the Superior Court of the State of California at Los Angeles on November 23, 1954, lacked the jurisdiction essential to its exercise of the authority it assumed under section 138 of the California Civil Code when it undertook to give the custody of these children to the father for the month of July of each year, i. e., because the children were not then domiciled in California.
The weight of authority holds to this view. Kruse v. Kruse, 150 Kan. 946, 96 Pac. (2d) 849; In re Hughes, 73 Ariz. 97, 237 Pac. (2d) 1009; Elliott v. Elliott, supra; In re Erving, *363109 N. J. Eq. 294, 157 A. 161; State ex rel. Larson v. Larson, 190 Minn. 489, 252 N. W. 329; Dorman v. Friendly, 146 Fla. 732, 1 So. (2d) 734; Gilman v. Morgan, 158 Fla. 605, 29 So. (2d) 372; Duryea v. Duryea, 46 Idaho 512, 269 Pac. 987; McAdams v. McFerron, 180 Miss. 644, 178 So. 333; Lake v. Lake, 63 Wyo. 375, 409 to 413, 182 Pac. (2d) 824; Callahan v. Callahan, supra; Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A. (2d) 829; Commonwealth ex rel. Freed v. Freed, 172 Pa. Super. 276, 93 A. (2d) 863; In re Alderman, 157 N. C. 507, 73 S. E. 126, 39 L. R. A., N. S., 988; 2 Beale, Conflict of Laws, Ch. 5, section 144.3, pages 717 to 719; 2 Nelson, Divorce and Annulment (2d Ed.), Ch. 15, section 15.32, pages 216, 217; 43 C. J. S., Infants, section 5, pages 52, 53; 31 C. J., Infants, section 6, pages 988, 989; 17 Am. Jur., Divorce and Separation, section 689, page 524.
The reasoning which leads to this solution is rested upon the law’s recognition of the fact, which is not to be denied, that a child although a minor is nevertheless an entity distinct and apart from his father or mother, guardian or other person in whose custody by chance he may be at the moment. His separate existence is admitted, even when it is ignored. In general, however, as a person he has his individual rights under the law, and is held to an individual responsibility by the law, both commensurate with his age and mental stature.
In other words admittedly a minor has a juristic status of his own to which it is difficult indeed to deny recognition when his custody is the question before the court, and even though the contest is between his parents, who themselves have submitted to the jurisdiction of the court. For he is the real party in interest in any such case as is evidenced by the familiar rule that in awarding his custody the paramount inquiry is always his welfare and best interests.
It is thus that the custody of a minor has come to assume in the modern law at least the aspect of a distinct res akin to the marital status of husband and wife, but apart itself from either parent and always to be distinguished from their rights *364and responsibilities. Hence the rule that this res must in any case be before the court to give it the requisite jurisdiction, if the court would reach the question of custody. Hence the corollary of that rule that it is not enough the parents are themselves personally before the court bound by its orders and judgment, as the California Supreme Court put the problem in its opinion in the Sampsell case cited.
The res must also be there, or jurisdiction fails. That res is made up of the rights and obligations which the phrase “custody of a minor” connotes, and by almost universal agreement among courts and legal scholars today is inseparable from the domicil of the minor himself. Where then the minor’s domicil is not within the jurisdiction at the time,, as are the facts at bar, the res likewise is not within the jurisdiction. The courts may not proceed even with both parents before it. The authorities which we have noted heretofore in this opinion, fairly sustain this. statement of the law.
Nor is the father’s case bolstered by the argument of his eounsel that the California court had a continuing jurisdiction in November 1954 because it is conceded there was jurisdiction there in. May 1944. That original jurisdiction was voluntarily surrendered by California and accordingly lost to its courts when with the father’s consent the Superior Court at Los Angeles gave the sole custody of these children to the mother and itself consented that she fix their residence in Montana, or elsewhere outside of California, as she chose. She did not violate the California judgment or breach her agreement of April 29, 1944, with the father when she brought the children to Montana. This circumstance alone suffices to make the citation of State ex rel. Nipp v. District Court, 46 Mont. 425, 128 Pac. 590, and Hersey v. Hersey, 271 Mass. 545, 171 N. E. 815, 70 A. L. R. 518, pointless. This distinction is plainly drawn by the Massachusetts court in the Hersey Case, and is the nub of its decision there upon the question of jurisdiction presented. See 271 Mass, at page 551, 171 N. E. 818. Because this authority and others of like kind are upon their facts not applicable to our problem, *365we do not need to inquire further whether they reach a sound conclusion in point of law. Clearly they are not to be followed as precedents at bar. Nothing in Pearce v. Pearce, 30 Mont. 269, 76 Pac. 289, or State ex rel. Giroux v. Giroux, supra, or Kane v. Kane, 53 Mont. 519, 165 Pac. 457, is to the contrary.
Undoubtedly when a suit involving the custody of a minor is brought in the state of his domicil and process is personally served upon the person there vested with his custody, jurisdiction attaches to determine any question touching that custody which may be raised. This was the case here in California which led to the interlocutory judgment of May 18, 1944, and the final judgment entered a year later. Probably that jurisdiction could not have been defeated by taking the children out of California before this final judgment was entered. Talbott v. Talbott, supra; Maloney v. Maloney, 67 Cal. App. (2d) 278, 154 Pac. (2d) 426. But with that judgment that suit ended. True these judgments were subject to modification under Cal. Civ. Code, section 138, as in Montana a similar judgment may be modified under R. C. M. 1947, section 21-138.
Yet to effect such a modification it is requisite that the parties be again brought before the court. This is tacitly conceded by the father’s counsel at bar; for in October 1954 when the father moved the California Court to modify the original judgments his attorney served the mother in Montana to bring her again before that Court. Thereby the father initiated an entirely new proceeding in the old divorce suit, which had been closed in 1945. Unquestionably in that new proceeding the California Court reacquired jurisdiction over the mother in November 1954 when she appeared and litigated her rights before it. But that was not enough.
It was necessary also that the Superior Court have before it the subject matter. This the California Supreme Court itself has made very clear in its own opinion in Sampsell v. Superior Court, supra. This was as necessary to the jurisdiction of the Superior Court as that notice be given the mother, or that she appear personally. But the subject matter or res was at that *366time with, these children at their domicil in Montana. The California court was powerless therefore to act upon it. Again the authorities cited earlier in this opinion sustain the conclusion stated.
The view to the contrary, upon which counsel for the father rely, that the jurisdiction of the California court follows these children even under the facts of this case after their removal from that state does find support, however, in Maine in the dictum of Stetson v. Stetson, 80 Me. 483, 15 A. 60; in Missouri in a like dictum in Meredith v. Krauthoff, 191 Mo. App. 149, 187, 177 S. W. 1112, and perhaps in a few other states which have followed the Stetson case. But these decisions are in the decided minority, and of little force today for the reasons which we have already detailed. In many of the cases the language used is again nothing but dicta with little or no support in the facts. These holdings are against the present weight of authority and out of step wth the trend of the law now at this point. This is clearly pointed out in Beale, Conflict of Laws, supra, at pages 718, 719. We believe their reasoning is unsound. Accordingly we decline to accept them as persuasive precedents.
It follows then that the order of the California Court of November 23, 1954, does not come within the protection of the full faith and credit clause of the Constitution of the United States, U. S. Const. Art. IV, section 1, because it was made without jurisdiction. In re Alderman, supra; McAdams v. McFerron, supra; Gilman v. Morgan, supra; State ex rel. Larson v. Larson, supra; Griffin v. Griffin, 95 Or. 78, 187 Pac. 598. Compare Talbot v. Talbot, supra, 120 Mont. at page 175, 181 Pac. (2d) at page 152. It will accordingly be given no effect in Montana.
But the courts of Montana are, nevertheless, themselves open to the father where, in the state of his children’s domicil, he may be heard. Nothing said in this opinion is to be understood as foreclosing him from applying to the proper district court of this state for an order touching his children’s custody. But upon this record in this court he is entitled to no relief.
*367The writ of habeas corpus issued in these proceedings is discharged without prejudice; and the children, Max and Karen Enke, are remanded to the custody of the respondent, Jean S. Baucus.
MR. JUSTICES' ANGSTMAN and ANDERSON, concur.