(dissenting).
Cutting through the legal technicalities asserted in the majority opinion and considered controlling, I would place the welfare of the child paramount to all other issues. In my opinion, the trial court exercised the better part of judicial wisdom in determining that immediate custody of the child should remain with John W. Byerly and his wife Barbara. This is especially true when one considers the determination in the light of the overt acts and deeds of all the parties and the adroit and successful maneuvering to cloud the real issues by the attorneys for all parties.
Until the Legislature determines that all original proceedings involving the welfare or custody of a child should be vested in a body other than in our present courts, the determination of such issues by a trial court should be controlling unless clearly erroneous.
In the instant case, the trial court had opportunity to observe and hear all persons involved; to judge the fitness of persons claiming immediate custody; and from all the maze judicially determined how the best interests, welfare, and immediate custody of the child could best be served. The child should not be permitted to become a pawn to be moved on a human chess board set up by adult contestants without regard to consideration of the child’s right to be moved or to remain in place. The Hardin Circuit Court had original jurisdiction of the parties, as well as of the child. All other proceedings were subsequent thereto, and, in my opinion, were not of such import as to wrest from *146the Hardin Circuit Court the legal right to adjudicate the issue of the immediate custody of the child and reserve the issue of permanent custody to be determined in a proper proceeding in the same forum. I am not persuaded that the immediate welfare and best interests of the child involved can best be accomplished by this court’s placing the custody of the child with the Department of Child Welfare. To me, the report of the Department of Child Welfare dated January 21, 1971, was advisory, and the trial court chose not to accept the advice. This was not a clear abuse of discretion. As between the report of the Department of Child Welfare and the finding of the trial court, I would accept the latter.
For these reasons I respectfully dissent. I would affirm the judgment of the Hardin Circuit Court.