One acquires a domicile of origin by birth. A child’s domicile is usually the domicile of his/her parents[i]. If the parents are having different domicile due to their separation or any other reason, a child’s domicile will be that of the parent with whom s/he resides[ii].
The question of domicile of a child arises most commonly with regard to family cases like divorce cases, custody of child, and other rights relating a child.
A child’s domicile changes when there is a change in the parent’s domicile. The domicile of a child does not change due to a child’s temporary absence from the place of domicile.
Even though the general rule is that a child cannot independently acquire domicile, a child can acquire domicile independently under limited circumstances. A child may acquire independent domicile only if s/he is set free. When a parent relinquishes all the duties and gives up all the rights over the child, that child is said to be an emancipated child. This may be proved from the conduct of the parties or circumstantial evidence[iii].
The general rule is that a person can have only one domicile at a time. Most decisions regarding minor children have followed the general rule. However, in the case of a child of divorced parents, a child is considered to be a resident of both parents’ domicile until the child attains majority because both parents, as natural guardians, share equal responsibility towards a minor child[iv].
The domicile of an illegitimate child is the domicile of the mother. When the mother dies, a putative father is considered to be the guardian of the child over all others. Otherwise, the domicile of the child will follow the domicile of a guardian[v].
The custody of a child will be determined based on the domicile of the child[vi]. When one parent gets custody of the child from the other parent, the rule applicable to domicile of the child will be same as that of acquisition of a new domicile. In order to acquire the new domicile, there must be intent to change the domicile as well as physical presence of the child in the new domicile. If it is not so, then the previous domicile remains[vii].
When one parent dies, domicile of the child becomes the domicile of the surviving parent[viii]. When a child has no parents due to death or abandonment, domicile of the child will be taken as domicile of the person with whom s/he lives[ix].
In a case of diversity jurisdiction, the domicile of a child who is in the joint custody of parents will be decided in favor of the state where the child primarily resides[x].
A guardian may change the domicile of his/her ward legally[xi]. An adopted child has the domicile of the adoptive parent. A guardian is responsible to choose the domicile of his/her ward[xii].
On attaining majority, a minor child attains power to acquire a domicile of his/her choice. S/he may or may not continue his/her domicile[xiii].
[i] In re J.D.M.C., 2007 SD 97 (S.D. 2007)
[iii] Richter v. Harmon, 243 N.C. 373 (N.C. 1956)
[iv] Aetna Casualty & Sur. Co. v. Williams, 623 So. 2d 1005 (Miss. 1993)
[v] In re Barlow, 404 Mich. 216 (Mich. 1978)
[vi] Perry v. Ponder, 604 S.W.2d 306 (Tex. Civ. App. Dallas 1980)
[vii] Thompson v. Mississippi Farm Bureau Mut. Ins. Co., 602 So. 2d 855 (Miss. 1992)
[viii] Anderson v. Martin, 257 S.W.2d 347, 1953 Tex. App. LEXIS 2337
[ix] Searle v. Searle, 2001 UT App 367 (Utah Ct. App. 2001)
[x] Clyde v. Ludwig Hardware Store, Inc., 815 F. Supp. 688 (S.D.N.Y. 1993)
[xi] In re Pratt, 219 Minn. 414 (Minn. 1945)
[xii] Dakuras v. Edwards, 312 F.3d 256 (7th Cir. Ill. 2002)
[xiii] Wiggins v. New York Life Ins. Co., 2 F. Supp. 365 (D. Ky. 1932)