Dissenting Opinion by
Rhodes, P. J.:I dissent from the majority opinion in this habeas corpus proceeding for the custody of the minor child Lawrence Kenneth Eastman. In the application of the rule that a mother has a prima facie right to the custody of a child of tender years, the welfare of the child has been totally ignored. The child was born on July 12, 1947, in Philadelphia, and, with the exception of the first six months, relatrix has not been with the child. In fact, she abandoned her two children in Philadelphia while her husband was serving in the United States Navy. Until November, 1950, she evidenced no concern about the child. The father of the child, who is still in the United States Navy, desires the custody of his son to remain with the respondents.
Relatrix now lives in the State of Washington with her second husband, who did not appear or testify in these proceedings. To conclude that it is proper to remove this child from his present surroundings where he has lived for nearly five years, without knowing relatrix, to an isolated farm in the State of Washing*129ton, is to callously ignore the child’s welfare. Respondents have the ability to properly provide for the child and they have an adequate home. The majority opinion states that the primary concern is for the best interests and welfare of the child, and then proceeds to subordinate such interests to a rule of law. There is no justification for the statement in the majority opinion that “we must choose between two homes of equally good environment; nor can anything be said against any of the parties personally. The result is that we must apply the general rule that the mother has a primary claim to her child and award custody accordingly.” Even if the factual statements are accepted, a child’s welfare is not determined by such a formula. Without emphasizing the conduct of the re-latrix, which in my opinion is sufficient to preclude granting custody to her, it is only necessary to refer to the surroundings to which the child will be transferred. Relatrix and her present husband have a 50-acre farm in the State of Washington. According to the testimony they have 17 head of cattle, 100 chickens, 13 geese, 2 dogs, and 1 cat. Only 10 acres of the farm, if it can be so described, are cultivated, and the income from the sale of milk is approximately $100 a month. The nearest community with schools and churches is three miles distant. Relatrix’ husband is obliged to work elsewhere to sustain the family, which probably includes at this time at least two children. It is not difficult to realize the impact upon this child if transferred from his present satisfactory and healthful surroundings and home life to an isolated home and placed among strangers.
It is not a matter of sympathy for respondents, but it is a vital factor in this child’s present and future well-being that he remain with respondents. The majority opinion concedes that the child may “suffer a *130temporary wrench of emotion,” blit this concession, to state it mildly, displays little knowledge of child psychology. The child should not be subjected to the ordeal and the risks which a change of custody involves.
Judge Ross joins in this dissent,