dissenting.*
A plurality of this court is of the opinion that this proceeding essentially involves “no more than the question of who shall raise a child to maturity” and holds that it does not sufficiently implicate the federal interest in personal liberty to warrant federal habeas corpus. Garth pi. op., supra at 146.1 In essence, the plurality sees the case as one involving nothing more than the custody of some children. But the question of who shall raise a child to maturity is not the issue now before us. The merits of Ms. Lehman’s capability to raise her children, a matter which absorbs about one-third of Judge Garth’s opinion, are likewise irrelevant at this time. The narrow but important issue before us is whether the .district court erroneously dismissed for lack of jurisdiction the habeas corpus petition’s constitutional challenge to Pennsylvania’s statute permitting the State to terminate permanently the rights of a parent in her children without her consent. Inasmuch as only that narrow question is before us and because I believe the district court had jurisdiction to entertain the petition, I respectfully dissent.2
I.
When Marjorie Lehman placed her three sons with the Lycoming County Children’s Services Agency (Agency) for temporary foster care, she and the Agency apparently intended that the custody would be only temporary and that the children would be returned after her expected childbirth confinement and after satisfactory housing had been obtained.3 The Agency later became convinced that she was incapable of raising her three sons and resisted Ms. Lehman’s efforts to obtain the return of her sons. It *157filed a petition in the Court of Common Pleas of Lycoming County under section 311(2) of the Pennsylvania Adoption Act of 1970, 1 P.S. § 311(2) (Supp.1980), seeking to terminate the mother’s parental rights.
The court did not find the appellant neglectful or abusive but found that she was “incapable of providing minimal care, control and supervision for the three children” and that her incapacity could not be remedied. In re William Lehman, Nos. 2986-88 (C.P. Lycoming County, June 3, 1976). Accordingly, the court granted the petition and awarded temporary custody of the children to the Agency pending placement in a foster home. The court also rejected Ms. Lehman’s contention that section 311 of the Pennsylvania Adoption Act is unconstitutionally vague. On appeal to the Pennsylvania Supreme Court, appellant again raised her constitutional challenge. The Pennsylvania Supreme Court, however, upheld the lower court and found the statute to be constitutional. In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880,99 S.Ct. 216, 58 L.Ed.2d 192 (1978). Following the rejection of her constitutional challenge by the Pennsylvania Supreme Court, Ms. Lehman filed a petition for certiorari with the United States Supreme Court. The petition was denied with three justices dissenting. 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).
Thereafter, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania on behalf of her three sons. The petition, alleging that the children are unlawfully detained and restrained of their liberty by the Lycoming County Children’s Services Agency in violation of the fourteenth amendment, sought to have them released from the custody of the Agency and returned to their mother’s custody. The district court, however, dismissed the petition for lack of jurisdiction, Lehman v. Lycoming County Children’s Services Agency, Civ. No. 79-65 (M.D.Pa., Sept. 4, 1979), and sua sponte issued a certificate of probable cause.
II.
As the plurality indicates, whether federal habeas corpus is available to assert federal constitutional claims challenging state custody of a child pursuant to state proceedings terminating parental rights has been addressed at length by only one other federal appellate court. In Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978), the First Circuit considered the availability of section 1983 and federal habeas corpus actions to review a state adjudication that the consent of a child’s mother would not be required in contemplated adoption proceedings. The plurality relies principally on this case. In Sylvander, however, custody of the child had been relinquished to a private adoption agency shortly after birth. The agency in turn had placed the child in a foster home. Thereafter, the adoption agency petitioned the state court for authority to dispense with the mother’s consent to the child’s adoption. The court granted the requested authority over the mother’s objections. The mother’s federal constitutional challenge to the applicable state statute was subsequently rejected by the Massachusetts Supreme Judicial Court. Thereafter, she filed in federal court a complaint under 42 U.S.C. § 1983 and a habeas corpus petition under 28 U.S.C. §§ 2241 & 2254 challenging the state proceedings. The First Circuit affirmed the order of the district court dismissing both the section 1983 complaint and the habeas corpus petition.
The First Circuit’s decision rested upon its perception that the state interests in family law matters outweigh the “collateral” federal interests in the adjudication of federal constitutional rights.4 From Syl*158vander the plurality draws the following conclusions: (1) A permanent termination of parental rights in children does not present “the same, strong claim for overriding the interest in finality as inheres in the plea of a prisoner that he has been incarcerated in violation of the Constitution of the United States.” Garth pi. op., supra at 140. (2) “[Hjabeas lies to challenge unlawful custody, but unlawful custody is simply not the issue in a parental rights termination case. It is not the liberty interest of the children that is sought to be protected in such a case, but only the right by the particular parent to raise them.” Id.
I can only assume that the plurality would reach the same conclusion in every case involving a child — even if the parent and child had an overriding love and attachment for each other — where because of some exigency the State had acquired custody of the child. For example, suppose the father of several children had been killed in an automobile accident, his wife severely injured, and the children placed in temporary custody with the State. The plurality would hold that under such circumstances the mother could not assert her federal constitutional rights or the federal constitutional rights of her children in a federal court to resist an effort to terminate permanently the parental relationship between the children and her. For the reasons set forth below I disagree with Sylvander and the conclusions that the plurality draws from it. Moreover, because Sylvander concerned custody of a private adoption agency and did not involve state action, I conclude that its relevance to the case at bar is limited.
As I have already suggested, the question whether there is federal habeas corpus jurisdiction should not depend on the federal court’s agreement or disagreement with the state court’s disposition of the merits of the case. Such an approach is unsupported by accepted principles of jurisprudence. Jurisdiction consists only of the abstract power of a court to try a case' of the kind or character of the one under consideration. Disposition of the issue presented by this case depends upon the resolution of two underlying questions. The first is whether federal review of state custody proceedings terminating parental rights in a child is available under the terms of the federal habeas corpus statute, 28 U.S.C. §§ 2241 & 2254. The second is whether, on balance, the exercise of federal habeas corpus jurisdiction in such cases serves the concerns of federal-state comity as well as other relevant policy considerations. I now turn to the first concern, the availability of federal review under the terms of the federal habeas corpus statute.
III.
At common law, the writ of habeas corpus originated as a method by which the superior courts of the common law and the chancellor could extend their jurisdiction at the expense of inferior or rival courts. Ultimately, it took form and survived as the writ of habeas corpus ad subjiciendum by which the legality of the detention of one in the custody of another could be tested judicially. McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 26, 79 L.Ed. 238 (1934). In its classic form the writ was directed to the disposition of the custody of a prisoner. Bacon, in his Abridgment, wrote that the writ “is the most usual remedy by which a man is restored to his liberty if he hath by law been deprived of it.” Bacon’s Abridgment at 425, quoted in McNally v. Hill, supra, 293 U.S. at 137 n.3, 55 S.Ct. at 26 n.3.
The importance of the writ is implicitly recognized by the terms of the Constitution. Article I, section 9, clause 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Congress first extended to the federal courts the power to issue writs of habeas corpus in the Judiciary *159Act of September 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82. The custody requirement of that statute was found in its prescription that the writ be used “for the purpose of an inquiry into the cause of commitment.” That commitment, however, could be either civil or criminal. Ex parte Randolph, 20 F.Cas. 242, 252-53, 257 (C.C.D.Va.1833) (No. 11,558) (Marshall, Circuit Justice and Barbour, District Judge). The original broad grant of jurisdiction was limited only by the following statutory language: “Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.”
Thus, in its original form in our nation’s history, the Great Writ did not reach the pleas of prisoners in state jails, those who have become the archetypal petitioners of modem days. It was not until passage of the Judiciary Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385-86, that the writ was first made generally available to state prisoners. The removal in 1867 of the exception to the broad jurisdictional grant of 1789 made the Great Writ available to anyone “restrained of his or her liberty in violation of the constitution.” Thus, the Supreme Court has observed that “the writ of habeas corpus should be left sufficiently elastic so that a court may, in the exercise of its proper jurisdiction, deal effectively with any and all forms of illegal restraint.” Price v. Johnston, 334 U.S. 266, 283, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948).
In modern times, the Supreme Court has stated:
The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: “The Privilege of the Writ of Habeas Corpus shall not be suspended .. .. ” U.S.Const., Art. I, § 9, cl. 2. The scope and flexibility of the writ— its capacity to reach all manner of illegal detention — its ability to cut through barriers of form and procedural mazes — have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.
Harris v. Nelson, 394 U.S. 286, 290-91, 89 S.Ct. 1082,1086, 22 L.Ed.2d 281 (1969). The purpose of the writ is “to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” Fay v. Noia, 372 U.S. 391, 401-02, 83 S.Ct. 822, 828-829, 9 L.Ed.2d 837 (1963).
The current federal habeas corpus statute provides:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
28 U.S.C. § 2254. See 28 U.S.C. § 2241. Thus, there are four basic requirements to the exercise of federal habeas corpus jurisdiction. The person in whose behalf the petition is brought must be alleged to be (1) “in custody,” (2) in violation of the federal laws or Constitution, (3) “pursuant to the judgment of a State court,” and (4) available state remedies must be exhausted.
First, I think it cannot be gainsaid that appellant’s sons are “in custody” within the meaning of the statute. In recent years the concept of custody has been expanded to include not only actual physical confine*160ment but also other severe forms of personal restraint. Of course, the Great Writ always could and still can reach behind prison walls. But recent Supreme Court decisions have made it clear that habeas corpus “is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). See, e. g., Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (release of petitioner on own recognizance constitutes custody within meaning of habeas corpus statute); Hammond v. Lenfest, 398 F.2d 705, 711 (2d Cir. 1968) (inactive naval reservist who had been called to active duty but not yet reported for service was “in custody” within meaning of federal habeas statute notwithstanding the absence of any criminal conviction). Thus, “it is no longer necessary for a person to be under actual physical restraint in order to obtain habeas relief.” Westberry v. Keith, 434 F.2d 623, 624 (5th Cir. 1970) (per curiam). The Commonwealth’s supervisory control over the children in the case before us is sufficient to meet the custody requirement of the federal habeas statute.5
Contrary to the plurality’s reading of Sylvander, neither the district court nor the First Circuit held that the children were not “in custody” for purposes of section 2254. In fact, in relating the district court’s conelusion on the matter the circuit court stated:
The district court found that Michael, although living with foster parents, remained under the supervision and control of the Home, “a private, non-profit agency engaged in child care,” and that this was sufficient to constitute “custody” in the Home.
584 F.2d at 1109. The district court found itself without jurisdiction because, even though Michael was committed to the Home through operation of a state court decree, there was not sufficient state involvement, given the private nature of the Home, to distinguish Michael’s case from that of a child who is placed in the custody of only one parent by operation of a state court judgment. Since it was clear that the court had no jurisdiction in the latter situation— because of countervailing policy considerations rather than a failure to meet the statutory requirements — it decided it had none to entertain Michael’s petition. The First Circuit approved this reasoning.6 584 F.2d at 1112. In the instant case the State is directly involved, not only through its judicial action in the section 311 proceedings, but also by virtue of a county agency maintaining “custody,” as used in the statute, of the boys.
Second, Ms. Lehman’s petition alleges that the custody of her children is in violation of several provisions of the United States Constitution. The petition asserts that section 311(2) of the Pennsylvania Adoption Act of 1970, under the provisions of which her parental rights were terminat*161ed, is unconstitutionally vague both on its face and as applied to her. In addition, she alleges that termination of her parental rights violated the fourteenth amendment because the Commonwealth failed to utilize less drastic alternatives. Furthermore, she avers that the Commonwealth had no compelling interest in terminating her parental rights in the absence of a finding that she had failed to provide adequate child care or that she would expose her children to serious and substantial harm in the future.
Third, the Commonwealth’s custody of the children is pursuant to the judgment of a state court, the Orphans Court Division of the Court of Common Pleas of Lycoming County, Pennsylvania. In re William Lehman, Nos. 2986-88 (C.P. Lycoming County, June 3, 1976). Finally, having presented her constitutional argument to the Pennsylvania Supreme Court, appellant has satisfied the exhaustion requirement of section 2254. Accordingly, I believe that the requirements of 28 U.S.C. § 2254 have been satisfied and that, absent important policy reasons to the contrary, federal habeas jurisdiction is available to this appellant.
As I read the plurality opinion, it concludes that the Lehman boys are not “in custody” as that term is used in section 2254 and that, even if they were, the State’s interest in the finality of its judgments, when combined with the traditional federal policy of deferral in the area of family law, outweighs the federal interest in keeping individuals free from unconstitutional deprivation of their personal liberties. I find this striking of the balance to be historically and rationally unacceptable.
The argument is advanced that were we to allow the exercise of federal habeas jurisdiction in the case before us, we will have effectively allowed an end run around the preclusive effect given state court judgments under section 1983. The plurality appears to have succumbed to this argument. But the plurality itself points out that state court judgments are shielded from section 1983 attacks only if the federal constitutional claims upon which the civil rights action rests were actually litigated in the state courts. See Garth pi. op., supra at 138 n.4. The plurality also acknowledges that the policy of federal deferral in matters involving family law will not override the federal interest in redressing unconstitutional deprivations of personal liberties when alleged in a section 1983 complaint.7 Similarly, if the allegations in the complaint are proved, no amount of state concern for finality of its judgments will prevent a federal court from restraining the execution of the state judgment. Thus, it is not the state court’s disposition of questions of family law, an area in which state courts are regarded as having special *162expertise,8 that is protected by this court’s rejection of Ms. Lehman’s habeas corpus petition; rather, it is the state court’s rulings on her federal constitutional claims that the majority holds that we are powerless to review.
The plurality’s conclusion that we should not, as a matter of federal-state comity, undertake to review the propriety of the Pennsylvania courts’ rulings on substantive federal constitutional law rests merely on the bald assertion that this case does not impinge “with special harshness on liberty.” Even if that were the jurisdictional standard — which I do not concede, and the plurality fails to cite any case that so holds— how can one plausibly declare that the removal of a child by the State from his natural family and the non-consensual termination for all time of the reciprocal relationships between mother and children impinges less on personal liberty than the call to active duty of an inactive reservist who had not yet reported for service, Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), or that it constitutes less of an impingement on liberty than experienced by an accused released on his own recognizance, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).
For the reasons stated below it appears to me that, on balance, the exercise of federal habeas corpus jurisdiction accommodates the competing interests of the federal government and of the state in the privacy of the family without sacrificing the important concerns of either.
IV.
I now turn to the question which I mentioned earlier, whether on balance, the exercise of federal habeas corpus jurisdiction serves the concerns of federal-state comity and other relevant policy considerations. In Sylvander v. New England Home for Little Wanderers, supra, the court reasoned that competing policy considerations militate against the exercise of federal habeas jurisdiction. The factors identified in Sylvander as militating against the exercise of federal habeas jurisdiction were primarily two: (1) exercise of habeas jurisdiction would interfere with significant state interests in the regulation of the family and domestic matters while serving only a collateral federal interest, and (2) there is no need to exercise federal habeas jurisdiction because other existing avenues of relief afford sufficient protection for federal constitutional rights. I consider each of these in turn.
The state interest in family relationships is well established and recognized by the federal courts. As the Supreme Court stated in In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890), “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Thus, this court, for instance, has declined to exercise diversity jurisdiction in domestic relations suits. Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975). See Armstrong v. Armstrong, 508 F.2d 348 (1st Cir. 1974). This case, however, bears no similarity to Solomon which arose out of a contract claim for child support payments and was brought during an ongoing state proceeding relating to visitation rights. Appellant’s petition in this case alleges that the Commonwealth of Pennsylvania has deliberately deprived these children of a fundamental personal liberty interest in contravention of the fourteenth amendment to the United States Constitution. Just as the federal deferral policy is overridden when such allegations are presented in section 1983 complaints, it logically should give way before identical allegations in a habeas corpus petition.
It is undisputed that this case does not involve a dispute between parents over the custody of their children. These are the types of disputes alluded to by the plurality which normally involve a determination of “who shall raise [the] child” and with which parent the child will reside. I repeat, what is at issue here is the constitutionality of a state statute that empowers the State to terminate permanently parental rights in their children without their consent and the many sensitive implications that follow therefrom. I see a fundamental difference *163between an action in which family members are struggling over, in the words of the plurality, “who will raise the child to maturity” and an action in which the State, even with all its beneficent motivations, moves against an existing family unit for the purpose of legally dismembering it. The latter, because the State proceeds against an individual and effectively deprives that individual of fundamental personal liberties, is not too unlike a criminal prosecution. Cf. Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (“the temporary removal of a child in a child abuse context is ... ‘in aid of and closely related to criminal statutes.’ ”).
This is a proceeding in which the State itself has taken temporary custody of the children after utilizing its own judicial machinery to terminate, permanently and in all respects, the legal relationship of the children and their natural mother. Thus, this is not merely a dispute over which of the children’s natural parents should raise them but whether the State may constitutionally forever foreclose the children from any relationship whatsoever with their natural parent. The important social and psychological consequences of this distinction cannot be overemphasized. The total extinction of a familial relationship between children and their biological parents is the most drastic measure that a state can impose, short of criminal sanctions, to protect disadvantaged or neglected children. The termination of the mother’s rights in her children is, in effect, a declaration to the children that their mother is legally dead. Therefore, any suggestion that the exercise of jurisdiction in this case will lead to the exercise of jurisdiction in ordinary child custody disputes between natural parents is disingenuous and palpably unrealistic.
Significant federal interests are implicated here. The Constitution recognizes a right to be free from unnecessary state intrusion into family relationships. The freedom of personal choice in matters of family life is protected by the Due Process Clause of the fourteenth amendment. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974).9
The United States Constitution recognizes a “private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). This right may be characterized as the integrity of the family, see Note, Constitutional Limitations on the Scope of State Child Neglect Statutes, 79 Colum.L.Rev. 719, 720 (1979), or of intimate association, see Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 (1980), and flows from “the importance of the familial relationship, to the individuals involved and to the society, [which] stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promot[ing] a way of life’ through the instruction of children,” Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977). This right encompasses not only the parents’ *164right to nurture, educate, love, and manage their children but the children’s right to remain with and be raised by their natural parents.10 Mr. Justice Brennan characterizes it as a “constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right.” Id. at 846, 97 S.Ct. at 2110.
The importance of familial relationships to minor children is particularly significant. An intimate relationship with a loving, caring adult is imperative for children. Most often this is provided by the natural parent and the law so presumes. The Supreme Court has observed that “historically [the law] has recognized that natural bonds of affection lead parents to act in the best interests of their children.” Parham v. J. R, 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979). Removal of a child from its natural parents may result in serious psychological harm and thus may inflict greater damage than the intervention was intended to prevent. Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L. Rev. 985, 994 (1975).
The Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”11 Quilloin v. Wolcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978). Responsibility for the “custody, care and nurture of the child residefs] first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, supra, 321 U.S. at 166, 64 S.Ct. at 442.
The Supreme Court has expressed in a variety of contexts an individual’s right to be free of unwarranted state intrusion into family relationships. Significantly, for the purposes of the case before us, it has acted to enforce the federal interests implicated in state child custody proceedings. In Quilloin v. Wolcott, supra, for instance, the Court considered the claim of an unwed father that, as a matter of due process and equal protection, he was entitled to an absolute veto over the adoption of his child. In Smith v. Organization of Foster Families for Equality & Reform, supra, the Court entertained an action under 42 U.S.C. § 1983 which alleged that the New York procedures governing the removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Constitution. Although the Court upheld the challenged statute, it recognized the importance of the biological family relationship in the nurturing and development of children. 431 U.S. at 842-45, 97 S.Ct. at 2108-2110.
Furthermore, the Supreme Court has made clear that natural parents have federal constitutional rights upon which the states may not encroach.12 In Stanley v. *165Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court held that an unwed father is constitutionally entitled to a hearing as to his parental fitness before his child is removed from his custody. Central to the Court’s holding was its recognition of the importance of familial relationships, even those “unlegitimized by a marriage ceremony.” 405 U.S. at 651, 92 S.Ct. at 1212.
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.”
Id.
Other federal courts have followed the Supreme Court’s lead and acted to enforce these important federal rights under the civil rights statutes. In Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977), for example, the Second Circuit considered a damage action under the civil rights statute by a mother, on behalf of herself and her two children, for the allegedly unconstitutional action of a city child welfare bureau in taking and retaining her two children without her consent and without a hearing or court order. The court reversed the judgment of the district court dismissing the action and held that the welfare bureau’s retention of custody of the children without judicial ratification amounted to a deprivation of the mother’s and children’s liberty interest in family privacy without due process of law. The court stated:
Here we are concerned with the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state. This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the “companionship, care, custody and management of his or her children,” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), and any of the children in not being dislocated from the “emotional attachments that derive from the intimacy of daily association” with the parent, Organization of Foster Families, supra, 431 U.S. at 844, [97 S.Ct. at 2110]
566 F.2d at 825 (footnote omitted).13
In Alsager v. District Court, 545 F.2d 1137 (8th Cir. 1976), aff’g per curiam 406 F.Supp. 10 (S.D.Iowa 1975), the court considered, in an action under 42 U.S.C. § 1983, a case factually very similar to the case before us. There, the parental rights of a natural mother and father in and to five of their six children had been terminated in state court proceedings. Subsequently, the parents brought an action in federal court challenging the state statute under which their parental rights were terminated as unconstitutionally vague and violative of substantive due process. The Eighth Circuit found the parents’ substantive due process objection meritorious and held that the state had failed to demonstrate “a compelling interest sufficient to justify permanent termination of the parent-child relationships.” 545 F.2d at 1137.14 In reaching its conclusion, the court relied on the district court’s recognition of a significant and constitutionally protected liberty and privacy interest in the integrity of the family *166unit. See Smith v. Organization of Foster Families for Equality & Reform, supra, 431 U.S. at 842-44, 97 S.Ct. at 2108-2109.15
V.
The relevant inquiry then is not whether the exercise of federal jurisdiction is ever appropriate in cases involving family relationships. The overwhelming weight of applicable precedent clearly indicates that such jurisdiction is not only appropriate but necessary.16 Rather, the question is whether countervailing considerations of federal-state comity render inappropriate the exercise of federal habeas corpus jurisdiction when the constitutionality of a state statute providing for permanent non-consensual termination of parental rights in their children is challenged. It bears iteration that intellectually that abstract question should be decided separate and apart from the merits of the case.
An historical accommodation has been developed between the state and federal courts respecting the administration of federal habeas corpus. Following the Civil War, federal habeas jurisdiction was expanded to what was believed to be the constitutional limit. See Ex parte McCardle, 73 U.S. (6 Wall.) 318, 325-26, 18 L.Ed. 816 (1867). This expansion of federal habeas jurisdiction was intended to facilitate dealing with anticipated resistance to reconstruction measures planned by the Congress. But soon after the enactment of the expansive provision in the Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385-86, the Supreme Court was faced with the issue of accommodating conflicting state and federal interests in the area of criminal justice administration. Thus, in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), the Court held that, although the federal courts had the power to discharge a state prisoner restrained in violation of the Constitution, ordinarily the federal court should stay its hand on habeas pending completion of the state court proceeding. The considerations underlying the Court’s holding were set forth in a later case:
While the federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws . .. the practice of exercising such power before the question has been raised or determined in the state is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the Federal courts charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the Federal court will remain unimpaired.
Cook v. Hart, 146 U.S. 183, 194-95, 13 S.Ct. 40, 43-44, 36 L.Ed. 934 (1892). These concerns of federal-state comity are reflected in the exhaustion requirements of 28 U.S.C. § 2254.
*167The continuing role of federal habeas corpus jurisdiction in accommodating competing federal and state concerns was more recently expressed in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). There the Court considered whether section 2254, the federal habeas corpus statute, was an available federal remedy by which to obtain relief for the allegedly unconstitutional deprivation of good-conduct time credits of a prisoner. The Court held that the appropriate remedy was through petition for writ of habeas corpus. Underlying the Court’s holding was its recognition that “[t]he rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity.” Id. at 491,93 S.Ct. at 1837. Thus, the Court noted that the strong policy underlying the exhaustion requirement of section 2254(b) is “to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors.” 411 U.S. at 490, 93 S.Ct. at 1836. I think similar considerations apply here in a case involving state custody of minor children.17
In the case at bar, appellant has, in conformance with federal policy, presented to and received from the state courts an adjudication of her federal constitutional claims. In particular, I take note of the well-reasoned and thoughtful opinion of Justice Roberts writing for the Pennsylvania Supreme Court. In Re William L., supra, 477 Pa. 322, 383 A.2d 1228. We are urged by the Agency that should we grant appellant a collateral federal forum for the presentation of her constitutional claims, we will be effectively undermining the Commonwealth’s interest in the sanctity of its own judicial proceedings. Were this an action under 42 U.S.C. § 1983, I might well find this argument persuasive. We have held that when a plaintiff has obtained a full and fair adjudication of his constitutional claims in a prior state court proceeding he is precluded from a later action under section 1983. New Jersey Education Association v. Burke, 579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). The same preclusive effect, however, is not given to prior state court proceedings by the federal habeas statute. Indeed, the statute itself requires exhaustion of available state remedies prior to availing oneself of the federal habeas forum.
Here, the Commonwealth has terminated the constitutionally protected relationship of appellant and her three sons and taken temporary custody of the children. Although I express no opinion as to whether that action was appropriate, I believe that federal habeas corpus is an available remedy in this case. My conclusion is based on the following reasons. First, federal habeas corpus rests upon the paramount importance of preventing unlawful restraint and represents a considered judgment by the Congress that federal jurisdiction should be exercised when the statutory requirements are met. In the case before us, the three sons of Ms. Lehman are in the custody of the Commonwealth of Pennsylvania under the authority of an allegedly unconstitutional statute and she has exhausted available state remedies. Hence, the requirements of the federal habeas statute are met and federal habeas jurisdiction must be exercised unless there are compelling reasons to the contrary. Second, although there is an important state interest in the regulation of domestic relations, the case before us is not the ordinary dispute between parents for the custody of a child but concerns the power of a state statutorily to extinguish for all time the reciprocal liberty interests of a natural mother and her children *168through a state custody proceeding. Under such extraordinary circumstances, there is an overriding federal interest in ensuring that state intervention in family relationships takes place within constitutional bounds. Finally, the exhaustion requirements of federal habeas corpus offer an appropriate accommodation of those competing state and federal interests by requiring that the federal claims be brought first in state court while preserving the opportunity for federal review. Federal review, of course, would be limited to the federal constitutional claims. The question of the custody of the children would still remain in the state courts for determination subject to appropriate federal constitutional guidelines.18
Therefore, I believe federal habeas corpus jurisdiction may be invoked to challenge the constitutionality of a state statute which empowers the state to take custody of children and permanently terminate without consent the reciprocal rights and liberty interests of parent and children.
Accordingly, I would reverse the order of the district court dismissing appellant’s petition for want of jurisdiction and remand for further proceedings not inconsistent with this opinion.
A. LEON HIGGINBOTHAM, Jr. and SLOVITER, Circuit Judges, join in this dissent.The writer of this dissent sat as a member of the panel that initially heard this case. He also sat as a member of the court in banc that subsequently was convened, heard oral argument, and participated in the in banc discussion of the case' following oral argument. Thereafter, on January 21, 1981, he took senior status under 28 U.S.C. §§ 371(b) and 294(b).
. The division of the court in this case is such that none of the filed opinions represents a majority viewpoint. Two opinions, however, Judge Garth’s and Judge Adams’, command a plurality. To avoid confusion, I will refer to Judge Garth’s opinion as that of “the plurality,” because it announces the judgment of the court, and to Judge Adams’ opinion as that of “the concurring plurality.”
. In his concurring plurality opinion, Judge Adams posits Ms. Lehman’s alleged lack of standing as one ground for denying jurisdiction in the case at bar. I think it important to emphasize that Judge Adams is not, as I read the opinion, addressing the issue of “standing” in the constitutional sense, which might raise a jurisdictional problem worthy of sua sponte consideration. See concurring op., supra at 151 n.30. Rather, he is concerned that Ms. Lehman may not be the best — or even a proper — relator in this action. Because I do not consider that issue to affect the question of jurisdiction, I do not address it. I believe that the question of proper representation is a matter to be determined by the district court in pre-trial proceedings, after it has assumed jurisdiction, in the same fashion that representation disputes are determined under the class-action rules. As Judge Garth notes, Garth pi. op., supra at 138 n.3, the standing issue is not properly before us and unless it affects our jurisdictional authority to hear the case, we should not reach conclusions of law on the basis of an undeveloped factual record.
. Although the plurality characterizes the placement of the children with the Agency as a voluntary surrender of custody, Garth pi. op., supra at 136, the placement was done informally and the parties intended that the custody be only temporary. This certainly is the intent revealed in Ms. Lehman’s petition and is supported by the county court’s order award- • ing the Agency temporary custody.
. The First Circuit relied upon several factors in reaching this conclusion. First, the court found “a long history of state predominance and federal deferral in family law matters.” 584 F.2d at 1112. Second, the court found it unclear whether “the welfare of children and families would be promoted by creating a right to litigate in two sets of courts instead of one, thus extending the potential duration of litigation in this area.” Id. Finally, the court stated *158its belief that, “if litigation expenses mount, social workers and charitable organizations such as the Home may well become less willing to seek placements for children over their parents’ objections, whether rational or irrational, even though in their honest judgment the child’s best interests demand it.” Id.
. There is precedent in the common law for the use of the writ of habeas corpus to challenge child custody. “[M]ore than a century ago an English court permitted a parent to use habeas corpus to obtain his children from the other parent, even though the children ‘were not under imprisonment, restraint, or duress of any kind.’ ” Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9 L.Ed.2d 285 (1963). Although that case is not dispositive of the issue presented by the case before us, whether federal habeas jurisdiction should be exercised, it does provide support for the conclusion that the statutory prerequisite of “custody” has been satisfied.
. The plurality asserts that this statement is incorrect and that the First Circuit rejected the district court’s finding that the Sylvander child was in custody for purposes of the statute. Garth pi. op., supra at 142 n.9a. The plurality relies on a lengthy quote from Sylvander which culminates in a holding that “[tjhis is not the kind of custody that has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication.” See id. I first note that this statement itself recognizes the existence of federal jurisdiction and is addressed only to the propriety of asserting it. Second, I submit that a “fair reading” of the quoted passage in the text accompanying the plurality’s note 9a reveals a discussion of policy, not statutory interpretation.
. I believe that the exercise of section 1983 jurisdiction is significantly more intrusive upon state interests than is federal habeas corpus. The intrusive nature of such an action is demonstrated by the arguments advanced by the plurality. They suggest, as a method for obtaining federal review, that a parent in Ms. Lehman’s position reserve her federal claims in the state proceedings so that they may be preserved and asserted in a later section 1983 action in federal court. Garth pi. op., supra at 144-146. The problems with such a procedure, however, are readily apparent.
First, such a procedure effectively precludes state courts from addressing federal challenges to state statutes and procedures. This is an important state interest, Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973), and one which is served by the exhaustion requirement of federal habeas corpus.
Second, to the extent that parents follow the litigation strategy suggested by the plurality they ensure protracted litigation because state courts would have no opportunity to resolve successfully the federal constitutional claims. Duplicate litigation and expense would therefore be required. Thus, the children’s interest in a speedy and final determination of their status, an interest which the plurality recognizes is significant, Garth pi. op., supra at 143-144, will be disserved. The exhaustion requirements of federal _ habeas corpus, however, require that the parents’ federal constitutional claims be addressed, in the first instance, by the state courts. Thus, there is an opportunity, not available under the procedure urged by the plurality, for an early and satisfactory resolution of the fed.eral claims.
. See, e. g., Sylvander v. New England Home for Little Wanderers, 584 F.2d at 1109 n.9.
. The right to family privacy and parental autonomy, as well as the reciprocal liberty interest of parent and child in the familial bond between them, need no greater justification than that they comport with each state’s fundamental constitutional commitment to individual freedom and human dignity. But the right of parents to raise their children as they think best, free of coercive intervention, comports as well with each child’s biological and psychological need for unthreatened and unbroken continuity of care by his parents. No other animal is for so long a time after birth in so helpless a state that its survival depends upon continuous nurture by an adult. Although breaking or weakening the ties to the responsible and responsive adults may have different consequences for children of different ages, there is little doubt that such breaches in the familial bond will be detrimental to a child’s well-being. But “so long as a family is intact, the young child feels parental authority is lodged in a unified body which is a safe and reliable guide for later identification.” Court or agency intervention without regard to or over the objection of parents can only serve to undermine the familial bond which is vital to a child’s sense of becoming and being an adult in his own right.
Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 649-50 (1977) (footnotes omitted).
. Thus, I cannot agree with the plurality’s declaration that the mother alone has an interest here. See Garth pi. op., supra at 142. The children as well have a biological and emotional identification with the natural parent which constitutes a protected and fundamental interest. Furthermore, although the children in this case may have expressed a desire not to be returned to their natural parent, I .do not believe that raises a jurisdictional issue. Rather, it would be a matter for the district court’s consideration in weighing the merits once jurisdiction is established.
. The Supreme Court’s basis for its constitutional concern with the integrity of the family is set forth in Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972):
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and “[rjights far more precious .. . than property rights,” May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953).... The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, 62 S.Ct. at 1113 and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).
. In commenting on the liberty interest inherent in the parent-child relationship, the Court in Meyer v. Nebraska, supra, observed:
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legisla*165tive action which is arbitrary without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.
262 U.S. at 399-400, 43 S.Ct. at 626-27.
. The Seventh Circuit recently observed: “Certainly where a biological relationship exists, the power of the state to regulate activity is limited.” Kyees v. County Dep't. of Pub. Welfare, 600 F.2d 693, 697 (7th Cir. 1979).
. The court reserved judgment on the vagueness challenge. 545 F.2d at 1137-38.
. In Roe v. Conn, 417 F.Supp. 769, 777 (M.D. Ala. 1976) (three-judge court), the court followed Alsager and held that “the Constitution recognizes as fundamental the right of family integrity.” On that basis, the court declared unconstitutional a statute authorizing the State to seize a child and remove it from its parents if “the child is in such condition that its welfare requires such removal.”
. In this term alone, the Supreme Court has taken action on three cases presenting constitutional challenges to parental rights termination proceedings. Lassiter v. Department of Social Serv., - U.S. -, 101 S.Ct. 70, 66 L.Ed.2d 21 (1980), granting cert. to In re Wm. C. Lassiter, 43 N.C.App. 525, 259 S.E.2d 336 (1979); Santosky v. Kramer, - U.S. -, 101 S.Ct. 1694, 68 L.Ed.2d 192 (1981), granting cert. to In re John A. A., 75 A.D.2d 910, 427 N.Y.S.2d 319 (1980). The petition for a writ of certiorari was granted in Santosky shortly after the Court found it necessary to dismiss the appeal in Doe v. Delaware, - U.S. -, 101 S.Ct. 1495, 67 L.Ed.2d 312 (1981) for want of a property presented federal question. Cf. 101 S.Ct. at 1496 n.4 (Brennan, J., dissenting) (dismissal for want of a properly presented federal question does not reflect on that question’s substantiality).
. The significant interests protected by the exhaustion requirement are of two types. First, exhaustion preserves the role of the state courts in the application and enforcement of federal law. . . . Second, exhaustion preserves orderly administration of state judicial business.... It is important that petitioners reach state appellate courts, which can develop and correct errors of state and federal law and most effectively supervise and impose uniformity on trial courts.
Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970) (footnote omitted).
. Such a holding would be consistent with the established federal policy which affords to the states substantial independence in the regulation of family relationships.
Government policy toward the family has traditionally been regarded as presenting local rather than national questions. Generally speaking, “there is no federal law of domestic relations, which is primarily a matter of state concern.” But the states’ power to legislate and administer family law has never been exempt from constitutional limitations. Restricting state power within constitutional bounds is an appropriate task for the federal judiciary, and carrying out this duty “does not make of [the Supreme] Court a court of probate and divorce.” The Court has properly insisted that state intervention respect fundamental human rights.
Developments in the Law: The Constitution and the Family, 93 Harv.L.Rev. 1156, 1159 (1980) (footnotes omitted).