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Solomon’s Decree: Conflicts in Adoption and Child Placement Policy

What has happened in the case of marriage is that most courts, including those at the domicil, have come to the conclusion that ordinarily it is better social policy to treat the marriage as valid if it conforms to the law at the place of celebration than to give controlling effect to a local rule of law which might invalidate it and thus render the parties guilty of illicit cohabitation and so make the offspring illegitimate. Here, social consequences rather than fine-spun theories of power at the domicil or of interest at the domicil in family relations have influenced results. As a matter of fact a number of different factors have influenced the courts in shaping their concept of the power of a state, through the operation of its laws or through the action of its courts, to create the various sets or aggregates of relations which are ordinarily included within the scope of the term “status.” Tradition and the voice of Justice Story have been an important influence. At times an instinctive feeling that where status is involved there should be a closer connection with a state than exists through mere temporary sojourn has, as in the divorce cases, been persuasive. But social objectives and convenience have also played their part, so that, as in the case of marriage, traditional ideas have been disregarded when it has seemed expedient to do so. As a result the concept or concepts of “jurisdiction” to create status, instead of being cut along the lines of one single pattern to be applied consistently, have been cut into different patterns according to the particular kind of status involved. The fact that provision is now made for adoption throughout the United States has materially reduced the possibility that liberal recognition of a foreign adoption will result in foisting upon a state a relationship of which it disapproves. The ever increasing tendency toward even closer supervision than is implied in mere judicial approval is reducing this possibility to a minimum.