Arizona republican., 1905-01-22

own. to consider the status of guardian ! which the petitioner holds under the ! laws of another state as an important | element in determining with whom the | custody of the child is to continue. It would not do to say that a foreign ] guardian has no claim to the care or | control of the person of his ward in
 this comma onyvealth. If such were the | rule, child domiciled out of the state,
 who was sent hither for purposes of | education, or came within the state by | stealth, or was brought here by force | or fraud, might be emancipated from the control of his rightfuI guardian. | duly appointed in the place of his dom- i icil, and thus escape or be taken out | of all legitimate care and custody But in such cases the foreign guardian
 would not be regarded here as a stranger or intruder His appoint ment in another state as guardian of an infant, with powers and duties sim
 liar to those which are by our laws vested in guardians over the persons of their wards. would entitle him to ask that the comity of friendly states having similar laws and usages should | be so far recognized and eXerted as to surrender to him the infant, so that he might be again restored to his full rights and powers over him, by remov- ign him to the place of his domicu. And if it should appear that such sur render and restoration would not de-
 bar the infant from any personal rights or privileges to which he might be entitled under our laws, and would be conducive to his welfare and pro- mote his interests, it would be the duty of the court to award to the foreign guardian the custody of the person.
 Nor can we see that the appoint ment of a guardian over the miner by the probate court in this common wealth operates to bar any decree by this court in favor of the foreign guardian awarding to him the custody of his ward. Such an appointment might be expedient and proper for the purpose of clothing some one in this commonwealth with authority over the person of an infant for his protection and security against any unauthorized interference or control But it cer- tainIy would not concIusiveIy settle his permanent status or condition, so long as he remained an infant, or prevent his being removed from the commCn- wealth by the guardian appointed in the place of his donicil, if the inter ests and welfare of the ward rendered such removal expedient or necessary. No doubt. so long as the child coutin- ues within this jurisdiction, the guard ian appointed in the courts of this state would have the exclusive right to the custody of his person. But the decree of the probate court does not deprive this court of the power to adjudicate and determine the question of the proper custody of the child as between a domestic guardian and one appointed in the place of the Gomicil of the in- fant. The Jurisdiction of this court to decide, on habeas corpus CT other proper process, concerning the care and custody of infants, is paramount, and cannot be taken away by any de- cree of an inferior tribunal. The result is. that neither of the par ties to the present proceeding can as sert or maintain an absolute right to the permanent care and custody of the infant who is now before the court. But 1t Is for this court to determine, in the exercise of a sound judicial dis cretion, having regard to the welfare and permanent good of the child as a.. predominant consideration, to whose custody ha shall be committed
 It will be noted that the case from which we have quoted differs from the
 
 Massachusetts case the child was in that jurisdiction without the intent Of its guardian to change its doTnicil to that state; while here the still stronger ] reason exists for following the doc urine enunciated, in that the petitioner in the exercise of it's custody and con- trol over the children voluntarily brought them to this jurisdiction. with the conceded intention cf changing their domicil by placing them in the homes in this territory it then believed to be suitable ones. Following the law as we find it, and with it we are in full accord, we do not deem it important to the main isue td be decided to pass upch the contention of the respondents that the charter of the petitioner gives ] it no right either to place these chil- dren in homes or to reclaim them for any cause after they have been so placed; that the petitioner has no rights of guardianship; that whatever ] rights the petitioner has have no ex- tra territorial force, and can avail such institution nothing outside the state of New York. that if the peti- tioner has right to place such chil- dren in homes, then admittedly it is q part of it's business, and in placing these children in the home here it has been carrying on such business in this territory, and having done so without complying with the territorial laws re- 1 specting the filing of it's articles and the apointment of an agent, it cannot now, under our law, maintain this pro- ceeding founded on such business so ! done here. If the subiect-matter of