dissenting.
Contested custody decisions for children, as a search for their best interest, cannot be extricated from a computer program nor elicited like a mechanical exercise by weight in application of factors, facilities and protection of parental ego. At the same time, decisions must be made when parents choose to live apart, which is more than conventional in this country today. It is in analysis of the probabilities of all intangibles attendant to raising children that sound discretion and judicial decision are addressed. It never can be easy and, assuredly, cannot be expected to be certain.
I first disagree with the trial court decision from a different perspective of the record in some material regard for exercised discretion and not reweighing the evidence which bears upon the likelihood of the father’s parental success, both financial and historical.1 Cf. Connors v. Connors, 769 P.2d 336 (Wyo.1989). More directly, I dissent in contending for a higher character of decisional use of the effect of the children’s choice for custody. Two reasons are advanced why heightened consideration should be given to the parental choice by the children after their attainment of the reasoning age for knowing, believing and choosing of a statutory fourteen years of age.
In first regard is the established knowledge that a court order cannot successfully and satisfactorily surmount the custody desires of teenage children for any extended time. Court orders today simply cannot hold these young people “down at the farm” if that is not where they want to be with the other parent.
In a major research analysis found in a recent review, Professor Cloud demonstrates, to my satisfaction, that there cannot be a successful control of cocaine usage unless we reduce the number of addicts.2 He demonstrates with detail and logic that nothing else, including death penalty and otherwise, will work until or unless product marketability is reduced by sheer reduction in the number of addicts as a matter of participative choice as members of that class. Likewise, and equally to be justified by experience and logic, is the thesis that self decision is also required of *221young people involved to make custody arrangements workable. The supposition that individualized decision is required to cure one national problem of substance addiction may afford logic even if a broad comparison to the self-determinant criteria required to resolve' another major national concern addressing the best interest of young people who are the product of broken homes. See Michael R. v. Sandra E., 378 S.E.2d 840, 843 (W.Va.1989).
My second application of the efficiency of teenager choice has a historical precedent which seems to have fallen into disregard in current time and clearly in this case was neither argued in trial court nor briefed on appeal. In 1890 Wyo. Sess. Laws ch. 21, § 2, the Wyoming legislature provided that “[i]f the minor is under the age of fourteen years, the court or judge may nominate and appoint his guardian. If he is fourteen years of age he may nominate his own guardian who, if approved by the court or judge, must be appointed accordingly.” That statutory provision continues essentially unchanged as presently found in W.S. 3-2-107:
(a) The order of preference for the appointment of a guardian of a minor is as follows providing the persons are qualified and suitable:
* * * * * *
(iii) The person requested by a minor who is fourteen (14) years of age or over.
In Tytler v. Tytler, 15 Wyo. 319, 338-39, 89 P. 1 (1907), as extensively quoted by the majority in this case, this predecessor statute was expressly applied to a custody decision:
In the case before us the children are with their mother. At the time of hearing, Muriel, who was just approaching the age of fourteen, expressed her wish to remain and live with her mother. She has now reached the age of fourteen, and her wish at this time as to who shall be her guardian is expressly recognized by statute. She may nominate her own guardian, “who, if approved by the court or judge, must be appointed accordingly.” (Sec. 4867, R.S.) While the supervisory power of the court or judge goes to the fitness and suitability of the person so nominated, the statute assumes that the minor having reached the age of fourteen can act intelligently in the matter of selecting her guardian.
Recognition of the guardianship designation statute for custody purposes was followed in Gill v. Gill, 363 P.2d 86, 89 (Wyo.1961), which stated:
In determining whether a change in custody should be ordered by this court at this time, consideration may be given to the fact that the older boy will be fourteen years of age in another six months, and the younger boy will be fourteen years of age in another eighteen months, at which age minors become entitled to nominate their own guardians, subject to the approval of the court or judge. Section 3-5, W.S.1957. [Now restated as W.S. 3-2-107]
Unless we determine this case on a compulsive analysis of res judicata, I would find a best interest discretionary decision should more expressly account for the age of the children and their right of choice when old enough to reasonably decide as set by the general statute at age fourteen for guardianship. Although consideration of the effect of a child’s choice under the statutory and case precedent was not included in present briefing, I remain concerned with further omission of any consideration in this majority’s decision. Silence should not imply disavowal of the individual choice perspective which was developed by statutory application in Tytler and Gill for long standing precedent.
Consequently, I dissent from the order of custody entered.
. The parties were divorced in 1979 by stipulated settlement of child custody, support obligation and debt allocation. Custody of the four children went to the mother, present appellant. During the next eight years, the pervasive problems of non-support payment, mutually agreed changes of custody and unpaid indemnity responsibility occurred and re-occurred. The oldest daughter, T.V., last living with her father, became pregnant in Worland and went to Florida. The second oldest daughter, D.V., remained with her mother who presently has custody. And, the youngest two children, F.V., now fourteen, and B.V. age thirteen, remain the subject of the 1987-1988 custody controversy. At appeal date, the father, employed at Imperial Holly Sugar Corporation, was subject to a $9,500 continuing garnishment in favor of the mother, as well as a previous debt for unpaid child support included in a URESA action in the amount of approximately $2,700. The mother, now remarried a second time, lives in Olympia, Washington and the father lives with his retired father in Worland, Wyoming, where these proceedings have occurred. Evidence in the record reveals that these two children want to live with their second oldest sister and mother in Olympia, Washington.
. Cloud, Cocaine: Demand and Addiction, A Study in the Possible Convergence of Rational Theory and National Policy, 42 Vand.L.Rev. 725 (1989).