(dissenting).
I respectfully dissent.
*173Because this matter is to be certified to the Supreme Court for examination and determination of the proper procedure in cases of this type, I feel constrained to state my views on the proper utilization of habeas corpus in a situation such as this. I recognize that it is established by a long line of cases in this state that when “unfitness” of the custodian or “welfare of the child” is raised in a return to a writ of habeas corpus the entire proceeding is converted into one of an equitable nature. In Re Shepler, Mo., 372 S.W.2d 87. The court hearing the habeas corpus action then must determine not simply the legal issue of right to custody, but the equitable issues of “welfare of the child” and “fitness” of the legal custodian. I am firmly convinced that in the predominant majority of cases a habeas corpus proceeding is unsuited for performing that function, and that the disadvantages of using such proceeding in that way far exceed the advantages.
This case presents for decision just one of the problems, i. e.: how does the legal custodian who has just lost custody obtain a review of that decision? That to me is minor compared to the far more serious problem raised by judicial approval of self-help remedies which encourage child-grabbing by one who acts upon his own judgment of what is best for the child. To an increasing degree the habeas corpus applications before this court involve situations where an individual having neither actual nor lawful custody of a child, gratuitously assumes such custody against the wishes of the legal custodian. That is the very situation presented by this case, and not infrequently encountered where the father and mother are divorced.
Under our present procedure the lawful guardian or custodian proceeds in the only way practically available to obtain instant return of the child, habeas corpus. But instant return is not now the province of habeas corpus in child custody. If the interloper alleges facts, which if true, would warrant a determination that the legal custodian is unfit or the welfare of the child requires a different custody the proceeding slows down. Faced with serious allegations of danger to the child the court is normally and properly reluctant to order custody restored to the legal custodian pending full development of the facts and must either leave the child with the interloper or order the child into custodial care pending hearing. By its very nature further proceedings to determine these equitable questions take time, particularly where the writ is pending in an appellate court which is ill-equipped to conduct evidentiary hearings and must refer the matter to the juvenile court under § 211.051 RSMo 1969, V.A.M.S. or appoint a commissioner to hear the case and make recommendations. If the alleged facts of “unfitness” or against the “welfare of the child” are unsupported by evidence or in fact are constructed from whole cloth out of spite, acrimony from an earlier marriage, or delusions, the rightful custodian, usually a parent, has been deprived of the custody during all these proceedings. And, more important, the child has been removed from his established environment into strange surroundings with whatever traumatic effects that may cause. Nor do I understand that the right to raise fitness in a habeas corpus proceeding is limited to persons having an ostensible interest in the child involved. It apparently would apply with equal force to a total stranger who, for whatever reason, decides that the parents or legal custodian of a given child are neglecting the child and who is willing to risk the possibility of prosecution for kidnapping in order to correct the situation. I cannot believe that the actual custody of a child for any period of time should be allowed to depend upon such opinion or whim. I find support for that conclusion in the language of § 211.021 RSMo 1969, V.A.M.S. (which admittedly applies only to juvenile court proceedings): “Legal custody may be taken from a parent only by court action . . .”
Of course, much of the above might of necessity have to be permitted in order to protect children if there were no other *174available judicial protection. But in all but a very few cases there is such protection available. In the divorce situation there is a continuing jurisdiction in the trial court to modify custody awards upon a showing of change of circumstances, which would certainly include unfitness of the designated custodian.
But even beyond that remedy the legislature has provided for far ranging judicial protection of children under the Juvenile Code. Chapter 211, RSMo 1969, V.A.M.S. Under § 211.031 the juvenile court has exclusive original jurisdiction where parents or other persons legally responsible for the care and support neglect or refuse to provide it or where the “behavior, environment or associations of the child are injurious to his welfare or to the welfare of others.” Section 211.081 authorizes “any person” to inform the' court that a child appears to be within the purview of § 211.031 and upon such information the “court shall make or cause to be made a preliminary inquiry to determine the facts . . . ” Based upon that inquiry the court may authorize the filing of a petition by the juvenile officer. Section 211.101 provides that where necessary the judge may authorize the officer serving the summons to immediately take the child into custody. Under § 211.181 the court has a wide range of choices available in making a disposition of the child. The entire statutory plan is geared to provide immediate protection to children whose plight is brought to the attention of the court. I cannot presume that the juvenile courts of this state are remiss in their proceedings under this statute or that where a dangerous situation exists they fail to act with dispatch.
There may be situations where neither the modification proceedings in the divorce court nor the juvenile court procedures are adequate. Such a situation was presented to this court and the supreme court in In Re Duncan, Mo., 365 S.W.2d 567. There the persons having actual custody were maternal grandparents. The legal custody had been awarded to the father in an uncontested divorce proceeding. The grandparents, of course, had no standing in the divorce court to seek modification of the decree as they were not parties to that suit. Since they already had physical custody of the child it might be argued that the child was not neglected within the meaning of § 211.031(1) (a). From a practical standpoint it may well be that where the child was put into the custody of the respondent in the habeas corpus proceeding by one or both parents, and has been in that custody for some period of time, relief through the juvenile court is not available. As I understand Duncan, the determination that fitness of the father should be determined in the habeas corpus proceeding was based upon the absence of any other forum for determining the issue. 365 S.W.2d 567 [3, 4]. A similar fact situation and result is found in In Re Shepler, Mo., 372 S.W.2d 87. Where in fact no other forum exists fitness can and should be determined in the habeas corpus proceedings. And of course in both Duncan and Shepler the respondents in the habeas corpus proceedings were persons who had actual custody of the children and had had for some length of time. The continuation of custody in the grandparents during the determination of the habeas corpus proceeding did not involve an uprooting of the children from their normal environment.
Unfortunately the language used in both Duncan and Shepler is not restricted to the particular and somewhat unusual fact situations there before the court. Those cases instead seem to indicate that in every habeas corpus proceeding involving custody of children, if fitness or welfare is raised the proceeding becomes an equitable one, and an evidentiary hearing is required. In view of the facts before the court in those cases I do not believe (despite the language used) that they require such conversion (from legal to equitable) in every habeas corpus case. Where there is a forum practically available to the respondent to have fitness and welfare determined I do not believe those defenses should be available in habeas corpus.
*175In the case at bar respondent has obtained the children without authority or right. He has done so simply because he wants them and has concluded the mother is unfit. If she is, respondent should have the juvenile court determine that fact. But he should not be permitted to make such determination by himself, carry it to fruition by unlawfully grabbing the children and then defend his unlawful action in the habeas corpus proceeding through a charge of unfitness. In this and in other self-help cases I would hold the defense unavailable and order custody returned to the parent or legal custodian forthwith. I believe it is a rare case where one having no legal right to custody should be allowed to defend his gratuitous assumption of custody upon the basis of the unfitness of the legal custodian.
As to the question of review, I concur that appeal is preferable to a new proceeding in habeas corpus. As heretofore indicated we are ill-equipped to hold evidentiary hearings. Where such hearing has already been held I find it far preferable to review the record of that hearing rather than order the case referred for another hearing and recommendation which we would then review.