(concurring).
I should like to add a concurring opinion to the majority opinion written by Justice Preslar.
This is simply a matter of jurisdiction but, as in many such cases, the jurisdictional matter involves the welfare of children, a matter about which the Texas courts have long, and rightfully, been very seriously concerned.
As stated in the majority opinion, the trial court in its original decree divorcing the parents did not, by such judicial decree, award the children to either parent. The judgment recites that the parents have agreed that the mother should have custody. However, I have not seen any cases where such agreement would have any effect whatever without the express approval of the trial court. Courts, not parents, decide who shall have custody of children involved in a matter of this nature. Here the court made no such finding, and did not make any finding as to the fitness of the mother to have the children; so at the conclusion of the divorce the only thing involving the care of the children was this agreement between the divorced mother and father; and it is my opinion that this agreement did no more than to permit the mother to have the supervision and care of the children. As stated in the majority opinion, this she shortly surrendered to the father by her own request, and the children then lived in Odessa, where this decree of divorce was handed down, for a period of seven years or more, and apparently for a considerable time before the divorce. To my mind the domicile of the children was and is clearly defined as being in Ector County, Texas. There is nothing in the record, to show that it was ever changed. The presence of the one child in Oklahoma has been brought about simply by the refusal of the mother to return the child to Texas. Some courts have been influenced by decisions holding that a child’s physical presence gives the court of that particular location jurisdiction. I think this is true only when the child needs the attention of the court and some jurisdictional care must be taken of the child in question. But where the child is just on a normal visit and remains there because of the refusal of the parent to return the child to its domicile, this should not, in my opinion, give jurisdiction to any court other than the domiciliary court. If this were not so, any state through which the child might pass or in which it might visit for a few days or weeks could announce that it had jurisdiction, whether the child was in need or trouble or not, simply because of the presence of the child.
Here, the parties submitted themselves to the Ector County District Court for the dissolution of their marriage, and by such action also placed their children in and under the custody and jurisdiction of the Ector County district courts. This jurisdiction has never been surrendered, and to my mind still exists. The only thing contrary to this statement is that the child went on a visit to its mother in Oklahoma, and she refused to return it. I do not believe that this does, or should, deprive the original court of its jurisdiction of children who became, in a manner, wards of the court when their parents submitted their case for divorce to such court.
One of the peculiarities of this case is that the appellant father himself overlooked the actual terms of the judgment of the Ector County court in 1955, and the father apparently believed that the court had awarded custody of the two little girls to their mother. He seemingly entertained this same view when he presented his appeal to this court. But, as stated above, the divorcing court, in 1955, merely recited that the parties had agreed that the mother *121should have custody. The court did not give legal dignity or judicial approval and effect to this agreement, but did specifically announce and approve the agreement of the parents with respect to the amount of money to be paid by the father for the children’s support. It cannot he overlooked that the court specifically found a certain amount to be proper for the support of the children, but did not make any finding as to the fitness of either parent to have custody, nor did it award custody to anyone. Perhaps the trial court was not ready or willing to so find or hold. This divorcing court having had all parties before it, had the right and the obligation to look to and adjudicate the future welfare of these children. I find nothing in the record that is legally sufficient to cancel or to have canceled the jurisdiction that the Texas court, to my mind, has always had. Having jurisdiction, therefore, of the parties and of the children, the court is empowered and obligated, as it has always been under the state of the record, to adjudicate and pass upon the custody of the children. A suit asking that very thing has been filed, alleging changed conditions.
I further feel that certain elements should he determined, such as the wishes of the children, the fitness of the parents, and many other matters, so that the future welfare of the children can best be regulated. They have lived for the past seven years, and probably a considerable time before the divorce, in Odessa; and certainly that court is in the best position to pass on this matter of custody. In the final analysis it cannot be denied that the welfare of the children is the first and paramount consideration in matters of this sort. The children having lived seven or more years in Odessa before and after the divorce, certainly the court there would be in a position to investigate the welfare of the children during that period of time. He would have available the testimony of school teachers, Sunday school teachers and church authorities, child welfare authorities, friends, neighbors, etc. All of these would surely give useful and valuable information to the court passing upon the question of what should be done about the custody of the children, and whether the present environment is and has been for the best interests of the children.
In conclusion, it must not he overlooked that these young girls lived for seven years in Odessa after the divorce and no one ever agreed, or decreed, that they could or should live anywhere else after they had come back from Oklahoma. This, then, should certainly establish their residence and/or domicile; and certainly, having grown up and lived together, it seems highly unfortunate that they should now, without any apparent wish on their part, be separated and an attempt made to rear them in separate homes. For the above reasons I feel that the District Court of Ector County had, and has always had, and has now, exclusive jurisdiction to determine the proper custodian for these two girls. I therefore respectfully submit this concurring opiniori.