STATE OF FLORIDA, EX REL. JOSEPH JAMES CLARK
v.
MARY CATHERINE CLARK
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A Florida father sought custody of his minor children from their mother in a habeas corpus action. The Florida Supreme Court affirmed dismissal for lack of jurisdiction, holding that a court must have jurisdiction over the children themselves—not just the parties—to determine custody matters.
The court held that Florida lacked jurisdiction because the children themselves—the subject matter of the custody action—were located in Georgia. A court must have jurisdiction over both the parties and the subject matter, and in custody cases, the children are the subject matter requiring jurisdictional presence.
“A court must not only have jurisdiction of the parties but it must have jurisdiction of the subject matter also. The subject matter involved in the question of custody of minor children is the children themselves, and if the court has not jurisdiction of the children it has not jurisdiction of the subject matter to determine the right of custody as between the parties to the suit over which it may have jurisdiction.”
Establishes the governing rule that custody jurisdiction requires jurisdiction over the children themselves, not just the parties
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Join FLexlaw to unlock all legal intelligenceThe father and mother were divorced in California and neither were Florida residents. The mother obtained the children from the father in Florida unde…
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This case is here on writ of error to review a final judgment in habeas corpus adverse to plaintiff in error for want of jurisdiction.
The action was brought by a father to gain custody of his minor children from their mother. The parties were divorced from each other in the State of California. Neither are residents of Florida. The mother procured the children from the father in Florida upon assurance that she would return them after a short visit. She carried them to the State of Georgia. The mother was served personally in Florida. At the time of service and at all times subsequent, the children were in the State of Georgia.
This Court has held that infants are wards of the court having jurisdiction of their person, Dorman v. Friendly, 1 So. (2nd) 734. We held:
“A court must not only have jurisdiction of the parties but it must have jurisdiction of the subject matter also. The subject matter involved in the question of custody of minor children is the children themselves, and if the court has not jurisdiction of the children it has not jurisdiction of the subject matter to determine the right of custody as between the parties to the suit over which it may have jurisdiction.”
Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L.R.A. (N.S.) 690, 123 Am. St. Rep. 809; Ex parte Chandler, 97 P. (2nd) 1048; Titcomb v. Superior Court In and For Santa Clara County, et al., 220 Cal. 34, 29 P. (2nd) 206; State ex rel. Rasco v. Rasco, 139 Fla. 349, 190 So. 510.
*454When the case of Dorman v. Friendly was decided, we were not unmindful of a contrary view. Breene v. People, ex rel. Breene, 51 Colo. 342, 117 Pac. 1000; Shaw v. Shaw, 114 S. C. 300, 103 S. E. 526; Crowell v. Crowell, 190 Ga. 501, 9 S.E. (2nd) 628.
Counsel for appellant insists that this case differs from Dorman v. Friendly and Lanning v. Gregory supra in that, here the wrongful detention occurred in Florida. We are much impressed with the justice of such argument. The alleged conduct of respondent impels us to afford plaintiff relief, however, before we can give consideration to the merits of any controversy, jurisdiction must be obtained. With jurisdiction our action is vested with power but without it the judgment is of no effect. The merits of the controversy will not aid the court in acquiring jurisdiction. Here, as in the Dorman case, the children themselves are the subject matter of the action.
Finding no error in the record and judgment the same is affirmed.
Brown, C. J., Whitfield, and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Digirogio v. Digirogio, 153 Fla. 24 (Fla. 1943)…lorida or returns to Nevada. The California court has no jurisdiction now of the child or the father in any case. If the California court should attempt to exercise jurisdiction it would find virtually the same case we had in State ex rel. v. Clark, 148 Fla. 452, 4 So. (2nd) 517, where the mother of the children wrongfully took them to- Georgia and returned to Florida to successfully show we were without jurisdiction. The issues were clearly made in this case upon the mother’s suit filed. May it be said tha…
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Rhoades v. Bohn, 114 So. 2d 493 (Fla. 1st DCA 1959)…Dorman v. Friendly, 146 Fla. 732, 1 So. 2d 734. . State ex rel. Galen v. Kuhl, Fla.App. 1958, 103 So. 2d 225. . Giachetti v. Giachetti, 157 Fla. 259, 25 So. 2d 658; Digirogio v. Digirogio, 153 Fla. 24, 13 So. 2d 596; State ex rel. Clark v. Clark, 148 Fla. 452, 4 So. 2d 517. .State ex rel. Galen v. Kuhl, supra note 3; Dahlke v. Dahlke, supra note 1; Gil-man v. Morgan, 158 Fla. 605, 29 So. 2d 372. . Marshal v. Bacon, Fla.1957, 97 So. 2d 252. . State ex rel. Galen v. Kuhl, supra note 3; Gilman v. Morgan,…
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Maxie Keith Smith v. Davis, 147 So. 2d 177 (Fla. 1st DCA 1962)…, JJ., concur. . (Fla.App.1959) 114 So. 2d 493; cert. granted (Fla.1960) 121 So. 2d 777. . State ex rel. Galen v. Kuhl, (Fla.App.1958) 103 So. 2d 225; Giachetti v. Giachetti, (1946) 157 Fla. 259, 25 So. 2d 658; State ex rel. Clark v. Clark, (1941) 148 Fla. 452, 4 So. 2d 517. . Giachetti v. Giachetti, see footnote 2; State ex rel. Clark v. Clark, see footnote 2. . Gessler v. Gessler, (Fla.1955) 78 So. 2d 722. . Rhoades v. Bohn, see footnote 1. . See Dahlke v. Dahlke et al., (Fla.1957) 97 So. 2d 16.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dorman v. Friendly, 146 Fla. 732 (Fla. 1941)
- State ex rel. Wendell F. Rasco v. Wilhelmina Gates Rasco, 139 Fla. 349 (Fla. 1939)