dissenting.
In my judgment, the opinion of the majority today cannot be reconciled with our most recent decision in the Matter of Andersen, 99 Idaho 805, 589 P.2d 957 (1978), and hence I must dissent. Although I did not agree with the decision of the majority in Andersen, I would accept it as the established law of this state. To do otherwise will only compound the confusion that this Court has allowed for too many years to exist in the area of child custody disputes between parents and nonparents. On the basis of Andersen, I feel the petitioner’s habeas corpus action must be held as proper and, therefore, would reach the issue ignored by the majority today, 1. e., whether the district court erred in granting custody of the two minor children to their grandparents rather than to their mother.
This Court in Andersen held that an adoption decree issued by a magistrate court could be reviewed in a habeas corpus action brought by the child’s parents in the district court of the same judicial district. What the majority today neglects to discuss, however, is the reasoning integral to the Andersen decision. In Andersen, the Court analogized the habeas corpus proceedings to a Rule 60(b)(3) motion for relief from judgment due to fraud, misrepresentation, or other misconduct of an adverse party. There the Court stated:
“We are unable to see where the Crapos could complain had the [petitioners] sought relief by a Rule 60(b) motion, or *836where they can complain where relief was sought in a habeas corpus proceeding. In either event, the issue to be decided is identical, i. e., did they have the right and cause to revoke their consents.” Id. at 809, 589 P.2d at 961.
By a parity of reasoning, the habeas corpus proceeding in the instant case can be analogized to a petition to remove a guardian under I.C. § 15-5 — 212, which states:
“(b). After notice and a hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.”
In my judgment, the clear purpose of petitioner’s habeas action was to terminate the guardianship appointment, although admittedly such is not explicit from the writ itself. Such is clear since the appointment of the guardian' was the only legal reason why petitioner was barred from instantly gaining custody of her natural children.
The Court held in Andersen that the district court would have had jurisdiction to hear a Rule 60(b) motion, and hence I would hold that the district court in the instant case would have had jurisdiction to hear an I.C. § 15-5-212 petition to remove a guardian.
I.C. § 15-5-211, dealing with “proceedings subsequent to appointment — venue” states in pertinent part, “(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian * * I.C. § 15-1-201(6) defines “court” as the district court. Since the wards in the instant case reside in Bonneville County, the petitioner here properly brought the suit before the district court of the seventh judicial district. Dealing with the question of whether that district court should retain jurisdiction, I.C. § 15-5-211(b) provides:
“If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court * * * and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interests of the ward. * *
The intent of I.C. § 15-5-211(b) is to maintain the guardianship matter before the court which initiated a full inquiry into the case, thereby avoiding relitigation of issues and conflicting decisions by different courts: “The welfare of children * * * requires above all else an authoritative and orderly disposition of the custody dispute * * *.” H. Clark Jr., The Law of Domestic Relations 576 (1969) (wherein is discussed the general problem of continuing litigation over child custody). Hence, it cannot be said that the district court abused its discretion by retaining jurisdiction in this case, albeit the guardianship had been initiated in the magistrate court. In the present case, the guardianship proceeding in the magistrate court was perfunctory, based only on the parents’ written consents to guardianship and the apparent fitness of the grandparents. No in-depth inquiry was made into the interests and fitness of the children, parents and grandparents by that magistrate court. Thus, there was no danger of relitigating important issues by having trial thereon in the district court. Further, nearly four years had elapsed between the guardianship appointment in the magistrate court and the filing of this action in the district court. The best interests of the wards would have been served by a comprehensive investigation into the interests and fitness of the parties by the district court.
I would hold under Andersen that whether the present action be labeled “habeas corpus” or “petition to remove a guardian,” the district court had jurisdiction and the issue remains identical, i. e., should the custody of the children remain with the guardians or be transferred to the natural parents.
Since I would hold that the district court had jurisdiction, I would then examine the findings of fact, conclusions of law and decision of the district court to determine if those findings are supported by the facts in *837the instant case. I would hold they are not and reverse.
In the area of custody disputes between parents and nonparents, it is an understatement to say that Idaho law is not a model of clarity. In custody disputes between parents and nonparents it is an oft-stated rule in Idaho that the child’s best interests are of primary importance, and are realized by applying a presumption in favor of parental custody. E. g. Matter of Andersen, 99 Idaho 805, 589 P.2d 957 (1978); McGregor v. Phillips, 96 Idaho 779, 537 P.2d 59 (1975); In re Ewing, 96 Idaho 424, 529 P.2d 1296 (1974); I.C. § 32-1007. A showing of natural parentage will establish in that parent a prima facie case for custody. The burden then shifts to the nonparent to prove that the parent has somehow forfeited his right to custody. In re Ewing, supra; Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800 (1966); Freund v. English, 83 Idaho 140, 358 P.2d 1038 (1961). Proving forfeiture consists of showing by clear and convincing evidence that the parent has abandoned the child or is unfit to care for it. Pullman v. Klingenberg, 95 Idaho 424, 510 P.2d 488 (1973); In re Ewing, supra.
These guidelines have been cited by almost every Idaho case dealing with child custody disputes between parents and non-parents, yet such consistency is deceptive. In a rather bewildering fashion, these guidelines, although cited, have often been ignored. This confusion in Idaho case law centers mainly around the fact situation where the child has been in the nonparents’ custody for some period of time prior to trial. Some Idaho cases have held that when the nonparent has had custody of the child for a number of years, the custody presumption in favor of the parents disappears and the sole criteria is the best interests of the child test. In re Ewing, supra, (step-father awarded custody over father where step-father had custody of the children for over four years); Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972) (nonparents granted custody of child over father where nonparents had custody of child for seven years); Application of Altmiller, 76 Idaho 521, 285 P.2d 1064 (1955) (grandparents granted custody of child over father where grandparents had custody of child for nearly seven years). The reasoning of these cases in refusing to grant custody to the parents focused on the length of time the child had spent with the nonparent, and the reluctance to tear the child “away from familiar scenes, friendly faces, and kindly voices * * Application of Altmiller, supra at 527, 285 P.2d at 1068.
Other Idaho cases have continued to apply the presumption in favor of parental custody even though the child has been in the nonparents’ custody. Blankenship v. Brookshier, supra (father was granted custody of his child who had lived his entire life, ten years, with his aunt); McGregor v. Phillips, supra (mother was granted custody of her child who had lived with grandparents for three years).
•In the area of child custody disputes between parents and nonparents, this Court is truly caught up in a welter of conflicting policies. Our legislature has mandated the right of a parent to the custody of its child. I.C. § 32 — 1007. On the other hand, recognizing the vagaries of human nature, the legislature has provided that a parent may be deprived of the custody of its child through mechanisms initiated by the state. See I.C. §§ 16-1601 — 1629. Also, the legislature has recognized the possibility of froward circumstance and provided for the interchange of custody from a parent to a nonparent by guardianship and adoption procedures. See I.C. §§ 15-5 — 201—212; 16-1501 — 1509. This Court has compounded the confusion through its case-by-case determination of parent-nonparent custody disputes without the establishment of criteria which may be understood and followed by our lower court system.
There really can be no dispute but that such cases present to this Court the most difficult and Solomanlike decisions. It is also true that
“[t]oo frequently there is attributed to law and its agents a magical power — a power to do what is far beyond its means * * *. The law, so far as specific indi*838vidual relationships are concerned, is a relatively crude instrument. It may be able to destroy human relationships; but it does not have the power to compel them to develop.” J. Goldstein, A. Freud & A. Solnit, Beyond The Best Interests of The Child (1973) at 49-50.
While admittedly the courts are “blunt instruments” in this area of the law, the alternatives seem to be an acceptance of the “best welfare” of the child, perhaps exemplified by J. Goldstein, et al, supra, who, while presenting widely known, but frequently ignored, considerations, perhaps give over-attention to the areas of psychology and psychiatry in its discussion of child custody problems. Even in those important areas, we are required to balance and choose between alternative theories, /. e., the beliefs of some that psychology and psychiatry have progressed little beyond the witchcraft rituals of burning of feathers and shaking of rattles as contrasted with those who believe that psychologists and psychiatrists can and do indeed cure all the ills of mankind and its society.
On the other hand are the views expressed by Dimond, J., in his dissent in Turner v. Pannick, 540 P.2d 1051 (Alaska 1975):
“I believe the basic concept that governs this case is the fundamental natural right of parents to nuture and direct the destiny of their children. This is a truth which one discovers by reason, and has the status of knowledge rather than mere opinion. Nature has instilled in man a love for his children; an intimate bond, by nature, exists between parent and child. * * *
If the rule were otherwise, we would be taking a step toward a totalitarian government. Children could be removed from their parents’ custody at the will of the state, depending on what some governmental petty tyrant decides is meant by the term ‘welfare’ or ‘best interests’ of the children. Such a state of affairs would be entirely contrary to the form of government envisioned by the founding fathers of our nation.” Id. at 1055-56.
This Court, as indicated by the above cited cases, has most often laid down the rule that in custody disputes between a parent and a nonparent, a parent will prevail absent a showing that the parent has abandoned the child or is unfit. It is only in those cases where the nonparent has had custody for some considerable period of time that the Court has, in any large measure, departed from its otherwise rule. Obviously, the instant case falls within that category of cases since the grandparents here have had “custody” of the children for five years. In other respects, however, the instant case differs, in that the parent here maintained a continuity of contact with the children, and under the facts presented in this record, could not be deemed to have abandoned the children. The instant case also differs from Andersen, in my judgment, in that the parent demonstrated no intent to permanently transfer custody since the parent here only consented to a guardianship as contrasted with an adoption. On the other hand, the actions of the nonparent-custodian here differ from those in Mitchell v. Pincock, 99 Idaho 56, 577 P.2d 343 (1978), since there the nonparent engaged in a course of conduct requiring prolonged litigation including the defiance of court orders and interjurisdictional transfer of the child.
I am not omniscient enough to predict how long will be too long a period of time in which a nonparent may retain custody of a child and thereafter be assured of continued custody because to rule otherwise would traumatize the mind of the child. In my judgment, it is enough to say that on the record before us, there is nothing to suggest that the parent here has abandoned the children, that the parent is unfit to have the custody of the children, or that the best interests of the children will be served by a continuation of custody in the nonparents because the minds of the children would be traumatized by a change in custody! See Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y. S.2d 821, 356 N.E.2d 277 (1976).
If this Court is to adopt a “welfare of the child” standard, I would hold that a nonparent bears the burden of showing that it would be severely detrimental to the child *839to undergo such transfer of custody. I would hold that showing of detriment to the child would require more than mere evidence that the child has formed a psychological attachment to the nonparent. See Bennett v. Jeffreys, supra; Turner v. Pannick, supra.
However, today I would hold that there is no clear and convincing evidence meeting any of the above standards, and our review should be limited only to determining whether there is substantial and competent evidence to support the findings of the trial court. Matter of Estate of Courtright v. Robertson, 99 Idaho 575, 586 P.2d 265 (1978); I.R.C.P. 52(a).
The district court expressly found that no abandonment had occurred. The district court, however, found that the parent of the child was emotionally unfit. My view of the record indicates it to be devoid of any substantial, competent evidence showing lack of emotional fitness. At best, in my judgment, the record demonstrates only that certain behavior and psychological problems of the children have been remedied while they were in the custody of the grandparents. The inference that they would have not been cleared up in the custody of the mother is without foundation. Likewise, the children’s expressions of their desire to remain with their grandparents in familiar surroundings are, at their age, neither surprising, unusual nor controlling. See Posey v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).
I would reverse the judgment of the district court and remand the cause with directions that judgment be entered for the petitioner.