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decentralized and pluralist approach to adoption

The position might be taken that the underlying reason for the judicial
practice of giving controlling effect to the law of the parent’s domicil in the
legitimacy cases lies in the fact that the parent’s act or acts makes the
child a legal member of his family. Whether the parent should be permitted to bring his natural child into his legal family, so the argument might
run, is a matter of concern to the state of the parent’s domicil because that
is where his family normally resides. Since adoption brings a stranger in
blood into the family, the position could also be taken, by way of analogy
to the legitimacy cases, that the legal effect of the acts of the adoptive
parent should be subject to the control of the state where the parent is
domiciled. It might even be contended that because control and care of
children involve family relations, power over custody belongs to the state
with which these matters are the most closely identified.
But an argument by way of analogy to the situations which exist with
respect to divorce and legitimacy fails to make allowance for the fact that
at least in the case of one species of status, considerations of expediency
have induced the courts to minimize the importance of domicil as a jurisdictional factor.
The family significance of marriage is obvious. Nevertheless it is uni49 The Supreme Court cases include Andrews v. Andrews, i88 U.S. x4 (1903) (one of the
parties must have a bona fide residence and domicil in the decree-granting state); Atherton v.
Atherton, i8i U.S. 155 (igoi); and Haddock v. Haddock, 201 U.S. 562 (igo6) (dealing with
the full faith and credit to be given sister-state divorces). See also Bingham, The American
Law Institute v. the Supreme Court, 21 Corn. L.Q. 393 (1936).
so See notes 9, ro, ii, and 12 supra, for cases dealing with legitimacy.
versally held that the formalities of the ceremony are controlled by the
law of the place of celebration, which place need not be the domicil of either
party. Even when the question is one of capacity or of the effect of some
express prohibition at the domicil, the decided judicial tendency is to uphold the marriage if it does not violate the law of the place of celebration.
The only exception is where the marriage is one which runs counter to an
unusually strong sense of social policy of the state where the parties habitually reside, and then there is never any thought that the marriage need
be celebrated at any particular place.5 ‘