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Show Pare Tuesday, May 20, 1958 THE DAILY RECORD 4 SUPREME COURT OPINIONS No. 8764 IN THE SUPREME COURT OF THE STATE OF UTAH In the Matter of the Application of Marla Morse for a Writ of Habeas Corpus, Marla Morse, Plaintiff and Appellant, v. Joe Steed and Marjorie Steed, Defendants and Respondents. McDONOUGH, Chief Justice: This is an appeal from the district court's dismissal of plaintiffs writ of habeas corpus for lack of ' juristdiction. On September 6, 1957, plaintiff, an unmarried woman domiciled in Weber County, Utah, gave birth to a daughter in Brigham City, Utah. Three days later, on September 9, 1957, she signed a paper, which was witnessed and notarized, by which she consented to the adoption of the child by respondents, Mr. and Mrs. Steed. The child was then taken to the Steed home in Stone, Idaho, as was contemplated in the consent, and has since there resided. Plaintiff learned Mr. Steed had returned to Utah and on September 19, 1957, caused him to be personally served with a writ of habeas corpus ordering Mr. and Mrs. Steed to bring the child before the district court in Weber County. It was plaintiffs contention that her consent to the adoption of her child was null and void, being contrary to the provisions of Utah Code Annotated and and that she therefore retained legal custody of the child. Mr. Steed appeared at the hearing and filed an answer containing the following points: 1. The Utah court was without jurisdiction, the child was a domiciliary of the state of Idaho and resided there at the time of service. 2. Service of the writ was improper and ineffective as 55-8-2(- c) 78-30-- 4, Mrs. Steed, not Mr. Steed has control and custody of the child. 3. A petition for adoption of the child has been filed by the Steeds in the courts of Idaho. The district court first considered the jurisdictional question, determined that it did not have jurisdiction, and dismissed the writ. The sole question before this court on appeal is whether the district court did in fact have jurisdiction to issue the writ and to hear the matters raised thereby. In view of this the third point of respondents' answer is immaterial to this appeal. Since the child is physically absent from the state, the jurisdiction of the court rests upon the fact that the childs domicile remained in Uah despite removal to Idaho.' It is elementary that a child born out of wedlock takes the domicile of its mother and retains that domicile until a new one is lawfully acquired(l). It is equally clear that generally the domicile of an infant, once established, can be changed only by the natural parents or legal guardian of such infant since the child has not the capacity to select a domicile of his own(2). The only change effected in the status of this child was the removal from this state under purported authorization and consent of the mother. The consent to adoption, signed by plaintiff, insofar as it attempted to give permanent custody of the child to respondents, was null and void under the provisions of Utah Code Annotated which states: No person shall hereafter as sign, relinquish or otherwise transfer to another, other than a , 55-8-2(- c) relative of the child within the second degree, his rights or duties with respect to the permanent care or custody of a child under sixteen years of age, unless specifically authorized or required so to do by an order or decree of court or unless the transfer is made to or by an agency licensed by the state department of pub lie welfare to receive and place children as herein provided. Any attempted transfer or assignment written, or otherwise made, in violation of this section shall be null and void." Plaintiffs consent was not given to a relative of the child, nor to an agency licensed by the state, nor .was it made by authorization or direction of any court; hence having failed to meet the requirements set forth above, it cannot be given any legal effect. Therefore, the domicile of the child remains unaltered. So long as a child remains a domiciliary of this state, rights and obligations concerning such child are proper subjects for consideration by the courts of this state(3). The issue of custody was raised in the court below by plaintiffs application for a writ of habeas corpus. The writ demanded the presence before the court of the respondents and of the child. It was served personally upon Mr. Steed while he was within the jurisdiction of the court, and he jointly held whatever custodial control respondents exercised over the child and thereby presumably had the ability to bring the child before the court. If a writ of habeas corpus is personally served within the jurisdiction of the issuing court upon a person who has the ability to produce the party whose presence is thereby demanded, such writ is effective and binding even through the party to be produced is held or detained without the state in which the court sits(4). The only reason which is acceptable for failure to comply is a showing of actual bona fide impossibility of performance by the person to whom the writ is directed(5). Thus the court below was presented with the question of custody of a child domiciled in Utah; such question raised by a valid and proper writ of habearf corpus issued by that court and served upon the person who had the ability to comply therewith by causing the child to be brought before-thcourt. In such a situation the court had all necessary parties before it, or capable of being brought before it, and it possessed jurisdiction over the general subject matter at issue. The Cal.2d 763, 197 P.2d 739; White v. White, 77 N.H. 26, 86 A. 353. 4. People ex rel Billotti v. New ' York Juvenile Asylum, 57 App. Div. 383, 68 NYS 279. jurisdiction and was fully empowered to determine the matter before it. The judgment of the district court is therefore reversed and remanded for further proceedings in harmony with the decision. 542 H L Crocker to U S Treas Dept; $137; 2416 S State e 5. Ibid. Liens 1591 537 G L Hackett to U & Co S Treas Dept; $323; 1301 Cont Bk Bldg 538 H Ray Hanks to U S Treas Dept; $4,052; 4711 Brown St, Murray 539 H Ray Hanks to U S Treas Dept; $2,233; 4711. Brown St, Murray .to U S 1609 S Main Treas Dept; $45; G Horton 540 Donald 541 Donald G Edgar to U S Treas Dept; $272; 733 Major St ed with all necessary elements of district court was therefore vest- WE CONCUR: 1591 Lumber Co to Duane R Bartels; $10; 224 Maywood Hills No 2 Sub 552 Anderson 1591 565 Jessie L Bennett to J. Allen Crockett, Justice A. Wade Justice Geo. W. Worthen, Justice F. Henri Henriod, Justice Restatement of Conflict of Laws, sec. 34, 17A Am. Jur. 205, 6. In re Guardianship of Sharp, 41 Cal. App.2d 79, 106 Lester 1. South-Ea- st Builders Supply; $1,960; 20 Oak Hills A-- l 1591 537 G L Hackett & Co to U S Treas Dept; $323; 1301 Cont Bk Bldg. 538 H Ray Hanks to U S Treas Dept; $4,052; 4711 Brown St, Murray . 539 H Ray Hanks to U S Treas Dept; $2,233; 4711 Brown St, P.2d 244. Murray 2. Tramwell v. Kansas Compen- 540 Donald G Horton to U S Treas Dept; $45; 1609 S Main sation Board 142 Kan. 329, 46 P.2d 867; Hughes v. Industrial 541 Ronald G Edgar to U S Treas Dept; $272; 733 Major St. Commission, 69 Ariz. 193 211 P.2d 463. 542 H L Crocker to U S Treas 3. Sampsell v. Superior Court, 32 Dept; $137; 2416 S State ?84tate Stars Lawrence -- Miner;$lO,0Q .1 v.j .. 22 2S IE 707 National 4olCltt 2 $9900; Corp; lianseuBldg No Hills Holladay 2; Flo 858 Andrew A Anderson toJEu v! Pierce;' $3,559;2 10 lOacPI, 860; National Fin Co . to sFTanfcJ , tin EiufD. a jaura, CMkf.MC Iftterta Dr to SuprhMi 1 $642; Furn-v- V " P0 C 21 1 Nielsen; $2300; to Commercial; Cred Delores, ' Sandy, ' Fifu CoTl'lJtanW National 862 . , . 'Jr v .v ; i "' Mth- W to Commercial Cred' Plan, Inc, ';,. 863 National ' Flitj Co toFrtuiig r Emp CredUn; $1,885: ;jC Nielsen; $126021 B 864 National Fin 00 41,021: Furn ( - - I : r. ' . 877 The Lockhart Co to: IrRojr :;$2i772;10 Amd PM to o o o to til9 Ins to Oren $122,800; 7 43 B Lockhart Co to Raymond Beckslead; $2,052; , 13 2 : 1 Walkers Sub Blk 6 PI A j Pnid Fed Sav & Ln to Model 978 Homes. Inc; $11,900; 21 Fuller ed ' Co; $150; , -- . Grdrvs No $i ,581; Car & Furn 1 .r 99C Walker Bk & Tr Co to A B ; Caldwell; $5,500; 48 Murray Co; $205; Furn . ' ' :Hts , Maxwell Louc to H A Co;$168; H A Co; $4,730; Car 999 Amer Sav & Ln Assn to Do wnln gtou to! . ',,jtf'to'H A ' -- . ,r - . : i ver non M Townley et al; $3,333 74 5 F ; ' $724; Car & Furn Georgia; Murray, to H A. Co; iW- -' rr i Kendall. Fern,. 290 - al to Marvin i; Seattle ; SA0: BMlp FurEhange; :Equi f&ter,JNorma2: 16 5 jn to Thomai 00;27 3S.1( Ins Co to Life Coast West 021 26 Thcron E Moffett; $8,500; 1 ;'i Pleasant View Hls 'r - ' & LntoJessC 022 First Fed Sav Brewer Homes, Inc; $17K)0j 25 So Olym Hts No 2 023 First Sec Bk to John O Speck, 7 Inc; $11,400; 408 Terrace View 1 '' fcGhie. 20 . |