The domicile of the infant during the life of his father, Joel Wolfe Thorne, was unquestionably in Dutchess county, where his father lived. By the decree which dissolved the marriage of his parents, sole custody of the infant was awarded to the father, and since the infant is in law incapable of creating an independent domicile, his domicile followed that of the parent, in whom custody and right of control was vested. If there had been no divorce the domicile of the father would have been in law also the matrimonial domicile of the mother, but after his death she could have changed her domicile. Ordinarily she would as sole guardian by nature of her children have the right to their custody, and the same reasons that form the basis for the rule that the domicile of the infant is in law fixed by the domicile of his father during his life should lead to the rule that, after the father's death, the mother by changing her own domicile may ordinarily change the domicile of the infant. That rule is supported by the great weight of authority. Because of that rule the courts below have held that at the death of the father the domicile of the mother automatically became the domicile of the infant, though the mother's marriage was dissolved and she had been deprived of the custody of the infant. In that conclusion I cannot concur.
While the domicile of the infant does not depend either upon the physical presence of the infant or upon the infant's intention, the rules governing the infant's domicile are not entirely artificial or arbitrary. The law places the infant's home at the home of his parent or parents, because to some extent it regards the family as inseparable and that is the place where an infant would naturally reside, since the infant may not decide for himself where *Page 452 he will permanently reside. That residence, once fixed, remains the infant's residence until changed by removal, actual or constructive, to another home. The reason for the rule that an infant's domicile after the father's death is the domicile of the mother completely fails unless the mother also has at the time lawful custody of the child; unless in law she is the head of the family. If one parent has abandoned the child, if he or she has been deprived of the right of custody and may not until custody is restored by the courts determine where the child shall reside, then both reason and practical considerations dictate that until the courts have acted, the domicile of the child remains unchanged.
In the present case the courts decreed in the divorce action that the father should have custody of the child. Death of the father has intervened and ended his custody. So far at least the decree can no longer have force. The decree, however, did more; it dissolved the marriage and it ended the mother's joint right to custody with the father. It is said that the mother's right to the custody of the child as the surviving parent came into existence when the father died, even though the decree of divorce ended her joint guardianship; that she is the guardian by nature even without appointment by the court. When a court passes upon the custody of the child in a divorce action, its first consideration should be not the rights of the parents, but the welfare of the child. The right, founded in nature, of the mother to have custody of her child is recognized by the law, but a mother may deprive herself of that right by her own wrong, and here the court has determined that the mother was unfit to have such custody. After her husband's death, until the custody of the child is awarded to some one else, she may have the right to urge that, despite the fact that she was deprived of joint guardianship of the child, its custody should be awarded to her rather than to a third party. For that reason I think that she should have received notice of *Page 453 the application for the appointment of a guardian, and that the motion to vacate the letters of guardianship issued without notice to her should have been granted. While under the provisions of section 177 of the Surrogate's Court Act, citation is not necessary to a parent who is "judicially deprived of the custody of the child," I think that it appears from the context that the Legislature did not intend to include a case where the indirect effect of the award of the custody of a child to one parent was to deprive the other parent of its custody. None the less, that was the effect of the decree of divorce against this defendant. It deprived her in fact of the custody of the child. She lost the right founded in nature and recognized by law, because the court has found that she broke her marriage vows and was not "a fit or competent or proper person to have the custody of the infant child." Though the father can no longer care for the child, custody may not without disregard of the child's welfare be restored to the mother without further judicial inquiry. Unless and until custody is thereafter awarded to her, she has no control of the child, and having no control cannot change its domicile. Analogy may be found in the provisions of section 111 of the Domestic Relations Law in regard to consent to adoption. Consent of a parent who has been divorced for his or her adultery is not a necessary prerequisite to the adoption, but notice is necessary. Here we may find support for the view that the decree of divorce deprives the parent of any rights to custody, but yet the parent should be given notice of any proceedings which might affect that child's permanent custody.
It seems to me that the opposite view is bound to produce anomalous and impractical results. If the mother makes no claim to guardianship, is the child without any domicile? If the guilty parent moves to a jurisdiction where different standards of moral conduct prevail, and there applies for guardianship of the child, must the *Page 454 courts of this State recognize the decree of the foreign courts though the child did not by his own act or the act of the innocent parent ever submit to the jurisdiction of the foreign courts? Though the courts of this State might under the provisions of the Surrogate's Court Act (§ 174) appoint a guardian under some circumstances, even if the domicile of the child is elsewhere, yet the jurisdiction is not complete and the courts of the place of the child's domicile remain in general the proper tribunals to determine the right to the custody of the child. The fact that in this case the dispute is as to the jurisdiction of the courts of two counties within the State does not change the principle involved. The domicile of the child at the death of the father, who had the exclusive right to its custody, was in Dutchess county. Though the mother has an interest in the child's welfare and after the father's death is not precluded from asking that the custody of the child be awarded to her, yet until the custody is awarded neither she nor any one else has any right in law to control the movements of the child or to insist that her home be the home of the child, and, therefore, she cannot change the child's domicile. It follows that though the order denying the motion to vacate the letters of guardianship should have been granted, jurisdiction to appoint is still in the Surrogate's Court of Dutchess county.
CARDOZO, McLAUGHLIN and ANDREWS, JJ., concur with POUND, J.; HISCOCK, Ch. J., and CRANE, J., concur with LEHMAN, J., dissenting.
Order affirmed, with costs. *Page 455