Petition for Rehearing
Before Brand, Chief Justice, and Rossman, Lusk, Warner and Tooze, Justices. *377TOOZE, J.Defendants have filed a petition for rehearing, alleging as follows:
“* * * the Court erred in not holding:
“ ‘ * * * that the court is acting on behalf of the state as parens patriae, under which mere residence of the child within the state suffices to give the judge jurisdiction to adjudicate what is for the best interests of the child.’ ”
“(4 A.L.R. 2d. 13, said line of authority not having been discussed by the Court in the original opinion herein) and in not holding that the welfare of the children may be considered by the Court.”
It is not to be assumed that this court failed to give careful consideration to the exhaustive note in 4 ALR2d 13, simply because it did not, in its opinion, discuss the same in detail. However, in the light of the petition for rehearing, we have again considered that note.
As shown by the discussion appearing in the ALR note mentioned, there is an apparent conflict among the authorities upon the question decided by this court. As stated by the writer thereof at page 13 :
“The cases deciding the question of the power of the court to award the custody of a child which has its legal domicil in another jurisdiction are in considerable confusion. ’ ’
In Finlay v. Finlay, 240 NY 429, 148 NE 624, 40 ALR 937, 938, decided in 1925, Judge Cardozo used the following language:
“The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. * * * For this, the residence of the child suffices, though the domicile be elsewhere. * * * But the limits of the jurisdiction *378are suggested by its origin. The residence of the child may not be used as a pretense for the adjudication of the status of parents' whose domicile is elsewhere, nor for the definition of parental rights dependent upon status.”
The courts taking a view opposite to that adopted by this court often quote the above from Judge Cardozo’s opinion. However, the holding in Finlay v. Finlay must be considered in the light of. the facts in that case. In the opinion, the facts are stated as follows:
“Plaintiff, a resident of St. Louis, Mo., brings this action against his wife, who is living in New York, for judgment regulating the custody of their infant children. Husband and wife formerly had their home together in Westchester county, New York. In the early part of 1923 the wife left the husband, taking the children with her, and since then has refused to live with him. Following this abandonment, the husband went to St. Louis, where he still maintains his home. The children are with their mother in Westchester county, N. Y. She refuses to give them up. The husband does not wish a separation. He could not get one from the courts of New York in view of his nonresidence. * * * What he wishes is a judgment that will enable him to share with his wife the custody of the children. He prays for a decree ‘granting unto the plaintiff the custody and control during fixed periods each succeeding year of his said two sons, and for such other and further relief as may be just in the premises.’ ”
The case was decided upon a procedural question. The special term for Westchester county had granted the motion of the wife for judgment in her favor upon the pleadings. The appellate division of the Supreme Court, second department, had reversed the judgment of the special term. The New York Court of Appeals reversed the order of the appellate division and af*379firmed that of the special term. It is manifest, therefore, that the first quoted portion of the opinion was pure dictum and wholly unnecessary to a decision in the case.
In People v. Gimler, 60 NYS2d 622 (1946) (affirmed with no opinion: 270 App Div 949), cited in our original opinion, the New York court adopted the same rule enunciated by us in the instant case. In that case the husband left New York and went to Wyoming, where he established his domicile. The wife and child remained in New York. The husband instituted a divorce suit in Wyoming, the wife making an appearance. Custody of the child was awarded to the father. The father then changed his domicile to Maryland. He instituted a proceeding in New York to secure custody of his child. The suit was brought against one William Grimier, the maternal grandfather of the child. Grimier contended that it was the duty of the court to decide what was best for the child, instead of merely honoring the decree of divorce entered in Wyoming. The court, at page 624, stated the question for decision as follows:
“The first question is whether or not there is any such power in this court; the foreign decree is not attacked and, since it was entered after the Wyoming court had acquired jurisdiction over both parties, the deliberate agreement that the child should thereafter be in the custody and control of the father raises the question whether the child is at all subject to the directions of this court.”
The New York court then concluded:
“If, therefore, the citizenship and domicile of the father and child in this case are not in this State, the fact that the child has remained here since the decree in the nominal custody of the mother who had appeared in the Wyoming court * * *, is not sufficient to invest our court with power to inter*380fere with the complete custody granted in due form, with jurisdiction and on consent, whereby the father became the sale [sic] judge of the good of the child in terms of custody and residence. It seems, therefor [sic] * * * that there is no ground for jurisdiction to modify the foreign decree.” (Italics ours.)
The court also discussed some of the prior New York decisions where jurisdiction had been assumed to pass upon the best interests and welfare of the child. At page 625 it distinguished those cases from the matter then under consideration as follows:
“The New York decisions cited by the respondent all seem to be instances where the child was then a citizen of New York, whereupon this court had jurisdiction to decide what is best for it. There seems to be no decision wherein the residence situation is that of the parties heard in this proceeding. ’ ’ (Italics ours.)
This is precisely the same distinction we drew between our former opinions, and the facts there involved, and the instant case. One is a citizen of the state in which he has his domicile. In the instant case the minor children of plaintiff and defendant, under the applicable law, have their domicile in the state of Indiana, and, hence, are citizens of that state, and not of this state, though temporarily residing here.
In arriving at our ultimate conclusions in the instant case, we were persuaded by what we deemed to be the better reasoning of those authorities asserting the proposition that, unless the child is domiciled in the state, the court has no jurisdiction to inquire into what its welfare and best interests demand, except under certain exceptional .circumstances as outlined by us, and that the determination of the court of domicile is entitled to full faith and credit in the state of the forum. As we pointed out in our opinion in this case, in the *381prior decisions of this court involving the custody of an infant whose custody had been awarded by a court of a foreign jurisdiction, and wherein we assumed jurisdiction to pass upon the question of its welfare, it appeared that the child had become legally domiciled in and a citizen of this state. It is fundamental that each state should be permitted to determine the status of its own citizens.
Our opinion in this case is based entirely upon a jurisdictional question. We do not believe the trial court had jurisdiction to inquire into the welfare of these children and award custody accordingly, and, of course, we have no such authority. This does not mean, however, that we are not deeply concerned about the welfare of these children. We are. If jurisdiction had existed, we are of the opinion that the ultimate conclusions of the experienced trial judge were correct, everything considered. But we are here concerned with a highly important principle of jurisdiction. It is obvious that we cannot make law to suit each individual case as it arises. There must be stability and uniformity in our decisions. Otherwise, the result would be legal chaos.
In our opinion in this case, we gave considerable weight to the decision of the Washington Supreme Court in the case of Jones v. McCloud, 19 Wash2d 314, 142 P2d 397, wherein was involved an award of custody of a child by the circuit court of Deschutes county, Oregon, in a divorce suit. The Washington court upheld the Oregon decree. The reasoning of the Washington court appealed to us as being absolutely sound. It is in keeping with the principles stated in Restatement, Conflict of Laws, 212, § 147.
The rule we have adopted will, as a whole, tend to discourage kidnapping, as well as contempt for the *382lawful decrees of a court of a sister state. An opposite rule, as contended for by defendant, would not only place the stamp of approval upon kidnapping and contempt, but would make this state a mecca for all persons seeking to evade the jurisdiction of the courts of the state of their original domicile. It would amount to a tacit admission, at least, that our own decrees in similar situations are of no effect beyond our boundary lines.
We quote from the author of the note in 4 ALR2d, at page 15, as follows:
“In a few cases, notably those from the state of Washington, it has been the policy of courts, on finding the child within its borders but domiciled in another state, not to decide the question of proper custody on the merits—barring exceptional cases of temporary custody arising out of immediate emergency— * * * .
“It is submitted that the adoption of such a policy by the courts generally would tend to discourage kidnapping by parents or evasion of the jurisdiction of the domicil by physical removal elsewhere. To be sure, the courts generally profess to condemn such conduct, but so long as a party has reason to believe that he may fare better in a foreign court, the assumption of jurisdiction by foreign courts will tend to encourage the practice.” (Italics ours.)
The instant case offers a very good illustration of what the author of the note evidently had in mind.
The record made in the trial court in this case discloses that, at the time the divorce suit was commenced in Indiana, all the parties were actually residing and domiciled in that state. The defendant father was personally served with process in that suit and made an appearance. The court entered an order awarding custody of the minor children to the mother pendente lite. *383The father was ordered to contribute toward the support of the children, and was, on one occasion, haled into court for failure to comply with the order of support. At the trial of the suit, defendant’s attorney appeared and participated in the proceedings. In the final decree of the court, permanent custody of the children was awarded to the mother. At that time the children were temporarily in the home of defendant’s parents at Lansing, Illinois, where they had been taken by the father under arrangement made with the mother, and where they were to remain only until the mother was able to complete the repairs on a home she had acquired in Indiana.
After decree, the mother went to Lansing to get her children. The defendant father refused to give them up, telling the mother that the Indiana decree for custody was of no effect in Illinois. It is clear that defendant knew of the terms of the final decree, and, of course, knew of the order made giving the mother custody during the pendency of the suit. The mother returned to Indiana, consulted her attorney, and a week later went back to Lansing for the children. In the meantime, the defendant had surreptitiously departed from his parents’ home, unlawfully taking the children with him. He left no word for the mother as to his whereabouts, and his parents refused to divulge the information to her. More than two years elapsed before the mother was able to locate the children, and then only through employment of a private detective agency.
It is manifest that defendant’s actions were prompted by an intent and purpose on his part to evade the jurisdiction of the Indiana court. His actions were in direct violation of the decree of that court and amounted to a contempt thereof. In effect, he *384kidnapped these children. As is altogether too often the case where matrimonial difficulties end in the divorce court, innocent children must suffer for the sins of their parents, hut such is the evil fruit of divorce. This is a deplorable social problem that the law has yet failed to solve.
However, as pointed out in our opinion, the courts of Indiana, in passing upon the question of custody of infants in divorce proceedings, are governed, as are the courts of this state, by what is deemed to be the best interests and welfare of the children involved. This also is true as regards the hearing of an application for modification of a decree respecting custody. There have been some changes in conditions as applied to these children since the entry of the Indiana decree that affect their welfare, but those matters are exclusively for consideration by the superior court of the state of Indiana, for Allen county.
Realizing the importance of this case, we gave very careful consideration to the question at issue before arriving at our final conclusions, and we have further carefully reconsidered the matter. However, in view of the fact that the Indiana court had complete jurisdiction over these children, as well as over the parents, and has at no time surrendered jurisdiction insofar as the minors are concerned, thus continuing the status of said children as wards of that court, we are unanimously of the opinion that the superior court for Allen county, and that court only, has the jurisdiction to order a change in custody. Defendant’s remedy lies there, not in this court.
The petition for rehearing is denied.