May v. Anderson

Background

A father obtained an ex parte divorce and custody decree in Wisconsin after the mother moved with their three children to Ohio and decided not to return. The mother received a copy of the Wisconsin papers in Ohio but did not appear. The father used the Wisconsin decree to take the children back to Wisconsin and later sought a writ of habeas corpus in Ohio when the mother would not surrender them in 1951. Ohio courts treated the Wisconsin decree as binding under the Full Faith and Credit Clause and ordered the children delivered to the father.

Reasoning

The Court asked whether Ohio must give constitutional full faith and credit to a custody decree issued ex parte by a Wisconsin court that lacked personal jurisdiction over the mother. It held that the Full Faith and Credit Clause does not require Ohio to treat such a custody award as binding when the issuing court had no personal jurisdiction over the absent parent. The Court explained that a personal right to immediate possession of children deserves protection and that a judgment in personam cannot be given extra-territorial effect if rendered without jurisdiction over the person.

Real world impact

The decision reverses the Ohio judgment and sends the case back for further proceedings consistent with the opinion. Practically, states are not constitutionally required to enforce out-of-state ex parte custody orders against an absent parent who was not subject to the issuing court’s jurisdiction. The ruling is a narrow constitutional answer and does not prevent a state from choosing to recognize such orders as a matter of local law.

Dissents or concurrances

A concurrence emphasized the narrow holding and said a State may still recognize the foreign decree under local law. Dissents argued for enforcing Wisconsin’s decree based on the children’s and father’s domicile or on procedural grounds.