(dissenting).
Since my reading of the record differs from that of the majority, I have reached a different conclusion as to the proper disposition of this appeal.
The majority concludes that the trial court in its memorandum opinion did “not specifically find that appellant lacked clean hands.” I am of the view that contrary to the majority’s analysis the trial court specifically based its refusal to assume jurisdiction on the grounds of appellant’s unclean hands. The trial court in its *324memorandum opinion of February 25, 1965, stated in part:
The children are present in Alaska although their mother, the plaintiff, brotíght them here in contravention of the custody decree of a California divorce decree between the parties.1
After making the above statement, the trial court in its memorandum opinion further stated:
However, the lack of clean hands is a most important consideration in the exercise of judicial discretion in determining whether a foreign decree should be reexamined on its merits.
The plaintiff removed the children to Alaska without informing their legal guardian until she had de facto custody of the children in Alaska. If there are changed , circumstances, .such should be litigated in California rather than the forum chosen by plaintiff. (Emphasis furnished.)
I believe that the above portions of the trial court's memorandum opinion clearly demonstrate that the rationale of its decision to refrain from exercising jurisdiction was its conclusion that appellant lacked clean hands.
I am in agreement with the majority’s adoption of the underlying public policy doctrine of the Marthens decision. In litigation ’involving decrees pertaining to the custody of the children, I believe that generally the paramount consideration of our courts should be that of the welfare of the children. I am of the further opinion that departure from this principle is only justified as a deterrent to child stealing and forum shopping on the part of an unsuccessful parent-litigation.2
It is on this very issüe of whether or not appellant brought the children into Alaska in violation of the California decree and thus lacked clean hands that I would remand the matter to the lower court for a further hearing. In an affidavit filed in the court below, appellant asserted:
That by virtue of the provisions of said document (a property settlement agreement between the parties and the final decree of July 13, 1964 entered by the California court) the affiant was entitled to reasonable visitation of said children at any time and any place; and scdd provision were understood by your affiant to permit her to visit the said children at her place of residence wherever that place of residence should be, and likewise, would serve to allow the institution of proper legal proceedings to determine the future custody of the said children at such place as she should reside. (Emphasis furnished.)
In connection with the above portion of appellant’s affidavit, it is pertinent to observe that appellee in his brief in this appeal states:
There did appear to be a substantial dispute as to whether Appellant ‘illegally, *325unlawfully and with malice aforethought, failed to return the minor children’ to Appellee, * * * or whether she brought them to Alaska and instituted this action in good faith under her understanding of the Final Judgment of Divorce.3
I fail to see how this dispute concerning appellant’s interpretation of the California property settlement agreement and custody decree could be resolved without a hearing. In my view (in light of the record), it was necessary that a hearing be held on this issue before the trial court could have determined the issue of clean hands adversely to appellant.4
I am of the further opinion that the majority’s disposition of this case on the grounds of appellant’s failure to allege changed circumstances is not warranted by the record. The record reflects that counsel for appellant requested leave to amend appellant’s pleadings in the event the court deemed it necessary.5 The trial court subsequently decided the matter on the basis of lack of clean hands and a majority of this court in turn disposes of the matter upon an analysis of appellant’s pleadings in regard to changed circumstances. I hardly think that counsel for appellant can be criticized for his “unfamiliarity with the implications of the type of hearing then in progress” since this issue is one of first impression for this court.
For the reasons above stated, I would remand for further proceedings in conformity with the views expressed in this dissent.6
. The memorandum opinion of the trial court then states that the court has “subject matter jurisdiction as a court of ■ equity” citing Clegg v. Abood, 13 Alaska 187 (D.Alaska 1951), which case distinguished State ex rel. Marthens v. Superior Court, 25 Wash.2d 125, 169 P.2d 626 (1946), on the grounds of changed circumstances.
. .See generally Ehrenzweig, Conflicts of Laws (1962) §§ 86-90, pp. 283 through 300. In regard to cases in the child stealing-forum shopping type of situation, Professor Ehrenzweig states at 293:
There is one type of case, however, in which deviation from this principle seems needed in the interest of both the child and society ⅝ * *. To encourage such scheming is clearly harmful particularly where the second court’s jurisdiction has been obtained in bad faith. It is true that the parent’s wrong by itself should not preclude a solution dictated by the child’s interest, and many courts have so said. But, even without regard to any wrong done, ‘stability of environment * ⅜ ⅜ in itself is an important factor in the welfare of the child.’
See also Ratner, Legislative Resolution of the Interstate Child Custody Problem, 38 S.Cal.L.Rev. 183 (1965), which contains the text of a Proposed Uniform Child Custody Jurisdiction Act.
. In Ms brief appellee also makes the following statement:
The only matter about which there appeared to be a factual dispute was Appellant’s understanding of the California Judgments.
. I am not persuaded that the federal authorities relied on by the majority as to the type of hearing necessary to resolve a Rule 12 motion to dismiss on the basis of lack of jurisdiction are appropriate. It is a rare instance where a federal court would have occasion to pass on jurisdictional questions pertaining to custody decrees in this type of case. Cases involving welfare of children can be distinguished from typical federal litigation. In these cases, under certain circumstances, examination of the children and demeanor evaluation may well prove crucial to the proper disposition of jurisdictional questions.
. In appellant’s Statement in Opposition to Motion to Dismiss, it was stated in part:
If an allegation is necessary for jurisdiction, plaintiff will ask leave to amend the complaint.
At the January 20, 1965, proceedings before the lower court, appellant’s counsel stated:
TMs issue is sufficiently brought out by the allegations as to custody and we notice that the defendant had no difficulty in going and finding cases on changed circumstances and tMngs of that nature. We would ask the Court * * * if the Court feels there has to be some allegation made, we can make an allegation, move to amend the complaint and put in an allegation that there are certain changed circumstances.
Note: On two other occasions during the January 20, 1965, proceedings counsel for appellant made statements to the same effect.
.I would also permit appellant to amend her pleadings in regard to change of circumstances in light of the majority’s decision.