Texas Attorney General Opinion: O-1579 Page: 2 of 3
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Hon. icmer P. Rainey, page 2 (0-1579)
It is settled law in Texas that the residence or domicile of a
minor child is ordinarily that of the father when the parents are not di-
vorced. Gulf C. & S. F. Ry. Co. vs. Lemons, 206 S.W. 75. When a divorce
has been granted to the wife, an unrestricted custody of the minor child
given er in the decree, her oan domicile establishes that of.the child,
even after her re-marriage. Bicks vs. Bucks, Supreme Court of Minn., 83
NW 538; 9 R.C.L. 548.
The view that the child's domicile follows that of its mother
rather than that of its father, where she has a separate domicile and has
been awarded the custody of the child, was taken in Toledo fraction Com-
pany vs. Cameron, 137 Fed. 48, in reply to the contention that the father's
domicile in Ohio, in which state the wife was granted a divorce with cus-
tody of the child, determined that of the child who was taken by the wife
to another stated and lived there with her, and that accordingly the child
was not entitled to sue in a Federal Court as a citizen of the other State.
The Court said
"It is doubtless true that the general rule is that the domicile of the
child follow that of the father. But this rule does not hold when the
parents are judicially separated, and the custody of the child is awarded
to the mother. . . . It would be inconsistent with such a decree that
the domicilsof the child should continue to be that of the father; for
the custody and control of the child, upon which t hether's domicile is
imputed to the child, no longer exists, but is transferred-to the mother."
In Griffin vs. Griffin, 187 Pacific 598, where a wife was granted
a divorce in California with custody of the children, and subsequently
obtained the court's conditional permission to take them out of its juris-
diction, but disregarded the condition to return then, their father having
apparently remained in that state, it was said
"We know of no law that would prevent the mother fran changing her domicile
to another state, and, upon compliance with the decree, taking the children
with her. The children being in the care and custody of the mother, her
residence is their residence. Such is the natural effect of a decree of
divorcee"
In our opinion your question, as we have restated it at the begin-
ning of this opinion, should be answered in the affirmative.
We have also been furnished with certified copies of instruments
showing the removal of the student's disabilities as a minor, in the 37th
District Court of Bexar County on September 7, 1939e Whether or not this
judgment is binding on the iliversity is a question which we deem it unnec-
essary for usto determine. The most that the judgment could establish,
relative to the minor's residence, was that he was a resident of Texas
at the time of the proceeding. And, even if the judgment is binding upon
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-1579, text, October 6, 1939; (https://texashistory.unt.edu/ark:/67531/metapth258768/m1/2/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.