Ron. tier P. Rainey,President
The lbiversityof Texas
Austin,Texas

DsarMr.Raiasyr                             OpinionX0. O-1579
                                           Re:.Legalresidenceof iminor who
                                          has been plaosd in his mother'scustody.
      ,M moaiwd your lstter of Ootobsr 6, 1939, followedby your lstter
dated Novzsabar
              3, 1939, inwhioh you requestour opinionoaths following
question:

"When a tinor’s parentsam divoroedand ha is placedin the oustodyof
his mother, does his legal residsnoefollowthat of his mother,who takes
him to anotherstatewith the father'sacquieaoeaoe?"

          ktiole 2664o;Vernon'sRevissd Civil Statutesof lkxas,provides
iB port PS    follow81

“A non-residsnt studentis hereby definedto be,a studbstof less than
bW&y4Be    (21) years of age, living amy from hi8 family,andwhose fsm-
ily residesin anotherstate or whoa? familyhas residedwithin the state
for a period of tinisless than twslvo (12)months priory
                                                      to'the date of
registration,   or a studeat   of tweztty-sne   (21)   years   of age or over   who
residesout of the state or wlm has residedwithinthe Stats for a pariod
of less*   twelve (12)months prior to the date of mgistrati0a.a

       Thatems "reside","reeidanaa"and adcmioile"ham been givea
variedmeaningsand shadesof meaning. In some lnstanoesthey am ooa-
struadto bs differentand in others thsy am held to be ideatioal,
dependingupor~the apparentstand inwhioh thsy am employedwhen oon-
sideredtogetherwith the whole oontexbof a statute.'It nas statedin
an opinionty this departmentdated September13, 1933,addressedto Dr.
H. Y. BcPlediot,
               that "reside"as used i&this statutehas the sams mean-
ing as ndcmioileW.~This same ruling.wasmade in oonferenoeopinim No.
2977, datsd,January10, 1938, Attorney General'sReport 1994 to 1936, p.
114, dimstsd to Dr. H. Y. Benedicrt;.
       %hem husbandand wife am living apart under a juduoialdeoree
of diroroeor separation,the wife may asquim a separatedcaaioileof
her own which will reaainunaffeotedby any ohatrge
                                                of residenceon the
part of ths husband. A divorcedwomaamsy selecther own danioile,
whether she is dimmed a vinoulomatrixonii,or only measa et thoro."
19 Corpus Juris 417.
Hon. Hmer P. Raiaey,page 2 (O-1579)



         It is settledlaw in Texas that the residenceor domicileof a
minor child is ordinarilythat of the fatherwhen the parentsare not di-
vorced. Gulf C. dcS. F. Ry. Co. vs. Lemons, 206 S.S. 75. when a divoras
has been grantedto the wife, an unrestriotedastody of the minor ohild
givea her in the decree,her assadomiaileestablishesthat of-the ahild,
even after her re+aairiage. Ricks vs. Buoks, SupremeCourt of ?&an., 83
W5381 9 R.C.L. 546.

         The view that the child'sdcmiailefollowsthat of its mother
ratherthan that of its father,where she has a separatedomicilesad has
been tirdedthe oustodyof the child,eus taken in Toledo Ihroti~ Corn-
pany vs. Cameron,137 Fed. 48, in reply to the oonteatioathatthe father's
domioilein Obio, in which statethe wife oyssgranteda divoroewith cus-
tody of the child, determinedthat of the ohild who was taken by the wife
to anotherstated and lived ihem with her, aad that aoooriiaglythe obild
was not entitledto sue in a FederalCourt as a citizenof the other State.
The Court said:

"It is doubtlesstrue that the generalrule is that the domioileof the
ohild followsthat of the father. But this ruIe does not hold when the
pemats em judiciallyseparated,and the oustodyof the child is awarded
to the mother. . . . It would be iaooasisteatwith such a deoreethet
the dcmioileofthe child should o&&tue to be that of the Pathersfor
the custody and controlof the ohild,upoa whichthefhther'sdomicileis
imputedto the child,no longer exists,but is transferred-to the mother."

        Ia Griffinvs. Griffin,187 Pacifio598, where a wife was granted
a diwroe in Californiawith custodyof the ohildma, and subsequently
obtainedthe court'soonditioaalpermissionto take than out of its juris-
diction,but disregardedthe ooaditionto returnthan, theirfather having
apparentlyremainedin that state,it ws said:

We larowof no law that would preventthe mother from ohangiagher dmnicile
to anotherstate, and,'uponcompliancewith the deoree,taking the ohildrea
with her. The childrenbeing in the oare and custodyof the mother,her
resideaosis their residenoe. Suoh is the naturaleffeot of a decreeof
divorce."

         m'our opinionyour question,as ns have restatedit at the begin-
ning of this opinion,shouldbe answeredia the affirmative.
         Ws have also been furnishedwith certifiedcopiesof tastnrments
shamingthe removalof the student'sdisabilitiesas a minor, in the 37th
DistrictCourt of Bexar countyon September7, 1939. Whether or not this
judgmentis bindingoa the Universityis a questionwhichwe deem it unneo-
essary for usto determine. The most that the judgmentoould establish,
relativeto the mibor's residence,was that he was a residentof !&me8
at the tims of the prooeeding. And, even if the judgmentis bindingupoa
Hon. Homer P. Rainey,page 3   (O-1579)



the Ohiversity,he is a non-residentwithin the meaning of Article 26540
until he has r&sidedwithin the State for twelvemonths. As we have seen,
his residence%a8 with h's mother,a non-resident,at least up tc the
time of the judment.

                                            Yours wry truly

                                         ATTOBNEY
                                                GENSPALOF TEX4S


                                         By /s/~H$-schieJohnson


                                                HirsobieJohnson
                                                   Assistant

HJ:RSxegw

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