An order may be made even if the children are outside the jurisdiction of the court. It is the court where the child normally resides that will have jurisdiction to entertain an application for custody. The mother, who was entitled to custody of the child as the child was under eight years old, took the minor child with her.

The mother and child lived together in place C for more than three years. The father filed an application for custody at place F. It was held that the court at F had no jurisdiction to entertain the application, as the child's ordinary residence was at C.

The court may also, from time to time, revoke, suspend, or vary any such orders and provisions previously made. If the parent in whose custody the minor children have been placed is subsequently proven to be living in a manner unfit for custody, the court will rescind its order and grant custody to the other parent, if they are proven to be leading a respectable life, or to some other proper person.

Upon the death of the parent to whom custody of the children of the marriage was granted after a decree of divorce, the court has jurisdiction to entertain an application by a third party for custody of the children.

A petition for judicial separation by a wife contained a statement in the body indicating that the petitioner desired custody of a child born of the marriage, but it did not include a formal prayer to that effect. The respondent appeared and filed an answer to the petition, expressly addressing that portion. Pending the hearing of the petition, the petitioner made an application for custody of the child pendente lite, which was opposed by the respondent and refused.

After a decree for judicial separation was made, with the respondent not appearing at the hearing, the petitioner applied for custody of the child. No notice of such an application was given to the respondent. It was held that it was the correct procedure not to include a prayer for custody in the original petition, and that it was unnecessary under the circumstances to give further notice of the application to the respondent.

An order for custody will be effectuated by placing the minor either in the actual custody of the successful applicant or in the custody of a person delegated by the applicant to obtain custody from the wrongdoer. It is desirable, as a matter of policy, that parents who snatch their own children in defiance of a court order relating to custody, care, and control should be dealt with as a contempt of court, rather than as a matter of criminal prosecution.

The latter method should only be used in exceptional cases where the parent's conduct is so egregious that any ordinary, right-thinking person would immediately regard it as criminal. It is extremely undesirable that private prosecutions should be brought for the kidnapping of a child by a parent.

End Notes:

• Harben v. Harben, (1957) 1 All ER 379.