dissenting.
Because I believe that the majority upholds the award of permanent custody to prospective adoptive parents in violation of the natural mother’s statutory and constitutional rights, I dissent. In particular, I am concerned that the majority permits the circumvention of our state’s relinquishment statutes by allowing the prospective adoptive parents to rely on a provision in the Dissolution of Marriage Act in a manner never contemplated by the General Assembly.
Accordingly, I would reverse the district court’s order denying respondent, C.R.S., (mother) permanent custody of her child and awarding permanent custody to petitioners, T.A.M. and M.A.M., the prospective adoptive parents.
C.R.S. was not married during her pregnancy and decided to give up her baby for adoption. Shortly before the child’s birth, she and the prospective adoptive parents signed a “Custody Agreement” drafted by the petitioners’ attorney. In that document, the mother designated petitioners as guardians of the unborn child and stated that she would relinquish her parental rights after the child was one year old so that they could adopt him. However, although it was implicit in the “agreement” that petitioners would care for the child after his birth, the document contained nothing obligating them to do anything.
The child, C.C.R.S., was born on March 5, 1990. The following day the mother signed a document entitled “Petition for Relinquishment and Waiver of Notice and Petition for Termination of the Parent-Child Relationship of Natural Father.” This document stated that the natural father had refused support and had “abandoned” him, only one day after C.C.R.S. was born. The parties agreed that the petition for relinquishment of mother’s parental rights and petition for termination of the father’s parental rights would be filed one year later. At that time, they contemplated that a court could enter a final order transferring legal custody and guardianship of the child to petitioners.
The mother was not represented by legal counsel when she signed the foregoing documents. Moreover, the intended relinquishment and adoption was defective because she was not adequately counselled nor fully advised of the consequences of the relinquishment, as mandated by § 19-5-103, C.R.S. (1993 Cum.Supp.).
Less than six months later, on August 31, 1990, the mother through an agent, sought to withdraw her consent to the adoption.
Less than two weeks later, on September 13, 1990, the petitioners filed a Petition for Custody and sought a temporary restraining order against removal of the child and a court order awarding them temporary and permanent custody of the child. That day, the trial court granted petitioners a temporary restraining order in an ex parte proceeding. Although the motion was verified by T.A.M., it did not allege any specific harm. It stated only that T.A.M. had read the motion and believed that the child was likely to come to physical and emotional harm if his mother was allowed custody of her child.
The court continued temporary custody with the prospective adoptive parents following an uncontested hearing in late October 1990. During the next 18 months, the mother sought to transfer the case to the Oglala Sioux Indian Tribe, pursuant to the Indian Child Welfare Act, believing that under that act the document relinquishing her son would necessarily be found invalid. Although the magistrate decided that proceedings should be transferred to the tribe, this order was reversed by the trial court on July 23, 1991. The mother met further delays while the trial court sought to obtain a pro bono lawyer to represent her.
Meanwhile, on June 17, 1991, the mother filed her own motion for custody accompanied by her affidavit renouncing the custody agreement and Petition for Relinquishment she had signed in February and March 1990. The affidavit stated that she had signed these documents without fully understanding them, without the advice of an attorney, and that she had now changed her mind.
Following an evidentiary hearing in May 1992, the trial court, based on a determination of the child’s best interests, granted *1346petitioners permanent custody of the child under the provisions of the Dissolution of Marriage Act (Dissolution Act), § 14-10-123, C.R.S. (1987 Repl.Vol. 6B).
The trial court acknowledged that the mother “has demonstrated that she can be a fit and proper parent” as evidenced by her success with another child, a seven-year-old son. The court also conceded that the mother had not received the counseling required by the relinquishment statute. Nevertheless, the court concluded that petitioners could provide a more “secure and healthy home environment” than the mother.
The trial court found that the mother was single, received public assistance, was pregnant with a third child, and lived in a poor neighborhood. It emphasized that the mother had made little attempt to visit the child or send gifts. However, the trial court also acknowledged that visits to the child were financially difficult for the mother given the distance between her home and her child’s home and her limited income.
The court further found, based on conflicting expert testimony, that a parent-child relationship had developed between the child and petitioners and that a severance of that relationship would be psychologically traumatic to the child.
Based on these findings, the court awarded permanent custody of the child to petitioners and allowed the mother “reasonable visitation on such terms and conditions as the parties may agree.” The court made no provision for any additional legal proceedings but noted that any further custody proceedings would be decided under § 14-10-131, C.R.S. (1987 Repl.Vol. 6B), which precluded the mother from seeking a change of custody for at least two years from the date of the court’s permanent custody order.
On appeal, the mother argues that § 14-10-123 of the Dissolution Act cannot be used to circumvent the specific provisions of the Children’s Code governing relinquishment of parental rights and adoption. Specifically, she argues that petitioners lacked standing to seek custody under the Dissolution Act and that a court can award custody to a non-parent only if (1) the natural parent is found to be unfit or (2) the natural parent has abandoned the child over a period of years and the non-parent seeking custody is either a blood relative or a step-parent who has active custody of the child during that time.
I conclude, for reasons discussed below, that the mother’s purported relinquishment was invalid, that the petitioners lack standing to seek custody under the Dissolution Act, and that even if such standing is proper, the trial court violated the mother’s constitutional right to custody of her child by applying a “best interest of the child” standard.
I. Relinquishment & Adoption
Because the controversy over the child originated as a private placement adoption, I believe it is necessary to consider the law governing parental relinquishment and adoption in pari materia with § 14-10-123 in order to determine the propriety of the district court’s order. See E.P. v. District Court, 696 P.2d 254 (Colo.1985).
When two or more statutes relating to the same subject are implicated, they must be considered and construed together to ascertain legislative intent and to avoid reaching an inconsistent, absurd, or unjust result. See Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo.1991); Gillies v. Schmidt, 38 Colo.App. 233, 556 P.2d 82 (1976).
Adoption was unknown at common law and thus the proceedings governing both adoption and the termination of parental rights are wholly statutory. Israel v. Allen, 195 Colo. 263, 577 P.2d 762 (1978) (adoption); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982) (parental termination).
The statutes governing parental relinquishment, § 19-5-101, et seq., C.R.S. (1993 Cum.Supp.), and adoption, § 19-5-210, et seq., C.R.S. (1993 Cum.Supp.), are part of the Children’s Code. Because adoption irrevocably affects the lives of children and their biological and adoptive parents, strict compliance with the statutory provisions and procedures is required. See In re Petition of E.R.S. v. O.D.A., 779 P.2d 844 (Colo.1989).
The Children’s Code explicitly provides that parental rights can be relinquished only pursuant to statute:
*1347No parent shall relinquish the parent-child legal relationship with a child other than in accordance with the provisions of this article.
Section 19-5-101(2), C.R.S. (1993 Cum. Supp.).
Moreover, the Code requires mandatory counseling of the natural parent(s) prior to relinquishment:
Any parent desiring to relinquish his child shall:
(a) Obtain counseling from the county department of social services in the county where such parent resides or from a licensed child placement agency....
Section 19-5-103(1), C.R.S. (1993 Cum. Supp.).
The Code also makes clear that, in private placement adoptions, prospective adoptive parents cannot become legal guardians of the adoptive child until a final order of relinquishment has been entered:
Birth parent or parents may designate a specific applicant with whom they may wish to place their child for purposes of adoption. After assessment and approval of the potential adoptive parents and subsequent relinquishment of the child, the court shall grant guardianship of the child to a person or agency described in section 19-5-104(1) until finalization of adoptive placement. A county department may provide adoption services to birth parents who request designated adoption only in cases in which the county has legal custody of the child prior to the filing of the petition to relinquish. All requirements and provisions of this article pertaining to relinquishment and adoption shall apply to designated adoptions.
Section 19-5-206(2), C.R.S. (1993 Cum. Supp.).
In addition, under § 19-5-104(l)(d), C.R.S. (1993 Cum.Supp.), the prospective adoptive parents cannot qualify as court-appointed guardians until the adoptive child has resided in their home for one year or longer.
The statutory provisions governing relinquishment cannot be waived, Fackerell v. District Court, 133 Colo. 370, 295 P.2d 682 (1956), and failure to comply with the law has been held to invalidate a natural parent s consent to adoption. See Foley v. Carnesi, 123 Colo. 533, 232 P.2d 186 (1951) (failure to have mother’s written consent witnessed and notarized).
In this case, it is undisputed that the mother’s purported relinquishment was invalid as a matter of law.
Section 19-5-103(1 )(b)(II), C.R.S. (1993 Cum.Supp.) provides:
The petition [for relinquishment] shall be accompanied by a statement indicating the nature and extent of counseling furnished to the petitioner, if any, and the recommendations of the counselor. If the petitioner has not received the counseling required by paragraph (a) of this subsection (1), the petition shall be continued, and the petitioner shall be referred for counseling by the court.
Here, the petition for relinquishment contained no such statement; indeed, the mother sought to revoke her consent before any relinquishment or adoption proceedings were filed in the district court.
Also, private placement or “designated” adoptions must be monitored and supervised by licensed child placement agencies. However, the record indicates that, contrary to § 19-5-206(2), petitioners were not assessed and approved by a licensed child placement agency prior to the placement of the child in their care. Furthermore, no agency consent was given for petitioners to adopt the child. See Price & McElhinny, Substantive Changes in Adoption and Relinquishment Law in Colorado, 16 Colo.Law. 2183 (December 1987).
Additionally, I note in passing that the difficulty of relying on Colorado’s private placement adoption statutes was recognized several years before petitioners sought to adopt the child. A 1983 article in The Colorado Lawyer cautioned:
[T]here are major drawbacks to private placements of a child by the natural parent. One impediment is that complete termination of parental rights may not have occurred. Another common problem is where the parties may wait to begin termination proceedings until the prospective *1348parents have had the child in their home for the one-year period and are ready to file for adoption. This has resulted in numerous instances where children have been reclaimed after the biological mother has reconsidered her decision and either revoked or withheld her consent. This can happen even after the child has been with the prospective adoptive parents for several years, (emphasis added)
Christensen, Adoption Procedures of Minor Children in Colorado, 12 Colo.Law. 1057, 1061 (July 1983).
Because parental or agency consent is a jurisdictional requisite to adoption, once necessary consent to the adoption is withdrawn, the courts are without jurisdiction to enter an adoption decree. Department of Social Services v. District Court, 742 P.2d 339 (Colo.1987).
In addition, our courts have ruled that in order for a natural parent’s consent to an adoption to be legally binding, the consent must be informed, i.e., the natural parents must know and understand “the import and consequences of what they were doing.” People in Interest of J.B.P., 44 Colo.App. 95, 98, 608 P.2d 847, 850 (1980).
Because this ease was tried under § 14-10-123, the trial court did not address the mother’s contention that she misunderstood the import and consequences of her consent to the adoption. However, inasmuch as the mother relinquished the child prior to receiving mandatory counseling, it is uncontrovert-ed that her relinquishment and consent to the adoption were invalid as a matter of law. It is equally clear that mother could legally revoke her consent to the adoption prior to the commencement of relinquishment proceedings, and certainly prior to having received mandatory counseling.
Conversely, petitioners knew, or should have known, that the mother could legally withdraw her consent to the adoption any time within the one-year period mandated under § 19 — 5—104(l)(d) and prior to the entry of a final order of relinquishment.
I consider these factors to be dispositive under the next part of my discussion.
II. Applicability of the Dissolution Act
The issue of non-parent standing under § 14 — 10—123(l)(b) and (c), C.R.S. (1987 Repl. Vol. 6B) is a question of first impression in Colorado under the circumstances presented here.
The statute provides that:
(1) A child custody proceeding is commenced in the district court or as otherwise provided by law:
(a) By a parent:
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(b) By a person other than a parent, by filing a petition seeking custody of the child in the county where the child is permanently resident or where he is found, but only if the child is not in the physical custody of one of his parents.
(c) By a person other than a parent who has had physical custody of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical custody. (emphasis added)
Sections 14-10-123(l)(a) and (b), C.R.S. (1987 Repl.Vol. 6B) were adopted verbatim from § 401(d) of the Uniform Marriage and Divorce Act (Uniform Act). The Commissioners’ Note to that section was intended to codify the presumption that natural parents have a superior right to the care and custody of their children absent a judicial determination of unfitness or dereliction of parental responsibilities. It states:
[This subsection] makes an important distinction between custody disputes commenced by parents and those commenced by some other person interested in a particular child.... (S)ubsection (d)(2) makes it .clear that if one of the parents has physical custody of the child, a non-parent may not bring an action to contest that parent’s right to continuing custody under the “best interest of the child” standard of Section 402. If a non-parent (a grandparent or an aunt or uncle, perhaps) wants to acquire custody, he must commence proceedings under the far more stringent standards for intervention provided in the typical Juvenile Court Act. In short, this subsection has been devised to *1349protect the “parental rights” of custodial parents and to insure that intrusions upon those rights will occur only when the care the parent is providing the child falls short of the minimum standard imposed by the community at large — the standard incorporated in the neglect or delinquency definitions of the state’s Juvenile Court Act.
9A Uniform Laws Annot., Uniform Marriage & Divorce Act, § 401 (1987 Master Ed.) (Commissioners’ Note) (emphasis added).
Other jurisdictions which have adopted this provision of the Uniform Act have devised a test for non-parent “standing” to' commence a custody proceeding.
The term “standing” in this context has a meaning distinct from its conventional usage. Generally, standing connotes whether a litigant has a justiciable interest in a controversy, and it is one of the components of the court’s subject matter jurisdiction. However, the term “standing” under this section of the Uniform Act has been interpreted with respect to non-parents as requiring a showing that the child is “not in the physical custody of one of his parents.”
When a non-parent meets this requirement, the court may then consider the non-parent’s claim for legal custody of the child under the “best interest of the child” standard. See In re McCuan, 176 Ill.App.3d 421, 125 Ill.Dec. 923, 531 N.E.2d 102 (1988); In re Custody of Barokas, 109 Ill.App.3d 536, 65 Ill.Dec. 181, 440 N.E.2d 1036 (1982).
The term “physical custody” is not defined in either the Dissolution Act or the Uniform Act. However, other jurisdictions which have adopted this provision of the Uniform Act have construed “physical custody” to mean something more than actual, physical possession of the child at the time the custody litigation is initiated. As stated by an Illinois court, “[t]o hold differently would be to encourage abductions of minors in order to satisfy the literal terms of the standing requirement and would, in reality, defeat the statutory intendment.” In re Custody of Peterson, 112 Ill.2d 48, 54, 96 Ill.Dec. 690, 692-93, 491 N.E.2d 1150, 1152-53 (1986).
Even if a different interpretation would not go so far as to encourage abductions, as the majority contends, at a minimum such a construction would encourage circumvention of the stringent requirements of the relinquishment and adoption statutes.
Accordingly, the standing test evolved by these jurisdictions balances several different factors, including the manner in which the child came into the non-parent’s physical possession, the intentions and expectations of the natural parent or parents when relinquishing the child, and the duration of the non-parent’s possession. Generally, courts have required non-parents to establish that a natural parent’s relinquishment of the child was both legal and voluntary. See Webb v. Charles, 125 Ariz. 558, 611 P.2d 562 (Ct.App.1980) (since natural father did not relinquish his legal rights, the maternal grandmother lacked standing to seek custody); In re McCuan, supra (where child was simply visiting grandparents with the natural mother’s consent, there was no relinquishment of physical custody); Henderson v. Henderson, 174 Mont. 1, 568 P.2d 177 (1977) (because natural mother never relinquished her parental rights, child’s aunt lacked standing to seek custody).
Courts further have ruled that a non-parent cannot deprive the natural parent of physical custody by simply refusing to return the child to the parent upon demand. Hanson v. McGowan, 197 Ill.App.3d 708, 144 Ill.Dec. 183, 555 N.E.2d 80 (1990).
In accordance with the mandate of § 14-10-104, C.R.S. (1987 Repl.Vol. 6B), to apply and construe the provisions of the Uniform Act uniformly with those states that have enacted it, see In re Marriage of Wells, 850 P.2d 694 (Colo.1993), I find the foregoing cases persuasive and authoritative.
Although the mother in this case transferred physical possession of the child to petitioners at birth, she revoked her consent to the custody arrangement and planned adoption before the child was six months of age. Once her consent was revoked, petitioners had no legally cognizable right to continued custody of the child.
Further, because the mother’s purported relinquishment was invalid as a matter of law under § 19-5-101, et seq., I believe it would *1350be incongruous to hold that mother nevertheless “voluntarily” relinquished her child for pui’poses of granting petitioners standing to seek custody under § 14-10-123(l)(b) or (c).
While there are cases in Colorado in which custody of a child has been awarded to non-parents over the objection of a natural parent, in most of these cases the evidence clearly established some form of parental unfitness or constructive abandonment. Walcott v. Walcott, 139 Colo. 37, 336 P.2d 298 (1959) (mother suffered from psychotic schizophrenia); Devlin v. Huffman, 139 Colo. 417, 339 P.2d 1008 (1959) (6-year abandonment by the mother); Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492 (1959) (7-year abandonment by the mother); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962) (8-year abandonment by the father). Cf. Turner v. Hunter, 142 Colo. 129, 350 P.2d 202 (1960); Phillips v. Christensen, 121 Colo. 380, 216 P.2d 659 (1950); Wells v. Wilbur, 471 P.2d 628 (Colo.App.1970) (not selected for official publication).
The other cases on which the majority relies do not support its holding. In Rippere v. Rippere, 157 Colo. 29, 400 P.2d 920 (1965), the court reversed a custody award to non-parents. In Abrams v. Connolly, 781 P.2d 651 (Colo.1989), the issue before the court was not custody per se, but rather, the natural father’s liability for child support arrear-ages following the death of the mother who was the minor child’s custodial parent.
Furthermore, Abrams v. Connolly, supra, In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992), In re Marriage of Trouth, 631 P.2d 1183 (Colo.App.1981), and In re Marriage of Tricamo, 42 Colo.App. 493, 599 P.2d 273 (1979), on which the majority relies, all involved dissolution or post-dissolution proceedings in which the trial court had original or continuing jurisdiction over the issue of custody under either § 14 — 10—123(l)(a) or § 14-10-131, C.R.S. (1987 Repl.Vol. 6B). These cases, therefore, are not dispositive of the issue of non-parent standing under § 14-10 — 123(l)(b) and (c).
III. The Conflict between § 14-10-123(l)(b) of the Dissolution Act and the Colorado Children’s Code
I agree with the mother that § 14-10-123 of the Dissolution Act cannot be used to circumvent the specific provisions of the Colorado relinquishment and adoption statutes.
Statutory constructions which defeat legislative intent, or which render a statute invalid, ineffective, or unconstitutional are to be avoided. Section 2-4-201, C.R.S. (1980 Rep. Vol. IB).
If statutes on the same subject are potentially conflicting, the court must reconcile the statutes, if possible, to ensure a consistent and sensible application of the law. In re Estate of David v. Snelson, 776 P.2d 813 (Colo.1989). If the statutes cannot be reconciled, and there is a conflict between specific and general statutes, the provisions of the specific statute control to the extent of the inconsistency. In re M.S. v. People, 812 P.2d 632 (Colo.1991); L.D.G. v. E.R., 723 P.2d 746 (Colo.App.1986).
Section 14 — 10—123(l)(b) is a general statute which governs child custody disputes between private individuals, usually in the context of a dissolution of marriage action. In contrast, the Children’s Code is a comprehensive legislative scheme devised to administer the state’s parens patriae responsibility to minor children. The relinquishment and adoption provisions establish a two-tiered judicial procedure whereby, through state action, one parent-child relationship is terminated and a second parent-child relationship is established.
In a recent dependency and neglect (D & N) proceeding, this court ruled that the specific statutory provisions of the Children’s Code take precedence over the general custody provisions of the Dissolution Act in proceedings under the Children’s Code. People in Interest of D.C., 851 P.2d 291 (Colo.App.1993). There, the minor child’s foster parents had intervened in the D & N action, seeking custody of the child under § 14-10-123 of the Dissolution Act. The trial court ordered a custody evaluation pursuant to § 14-10-127, C.R.S. (1993 Cum.Supp.), but otherwise adhered to the Children’s Code in determining custody.
A division of this court disapproved of the trial court’s reliance on the Dissolution Act, *1351holding that once a petition for custody under the Dissolution Act is certified pursuant to § 19-1-104(4), C.R.S. (1993 Cum.Supp.) of the Children’s Code as part of a D & N action, the provisions of the Dissolution Act are “no longer relevant to the proceedings.” We reasoned that such a result was in harmony with the differing policies underlying the Dissolution Act and the applicable provisions of the Children’s Code:
[T]o engraft the custody provisions of the [Dissolution Act] onto proceedings under the Children’s Code would only lead to confusion and conflict between countervailing policies and procedures under the two different acts.
People in Interest of D.C., supra, at 294. I believe the potential conflict between the two acts is even more direct and far-reaching under the circumstances of this case.
Petitioners here acquired temporary custody of the child pursuant to the relinquishment and adoption provisions of the Children’s Code and they should have known that their right to continued custody was contingent upon compliance with the mandatory provisions of that statutory scheme. However, as soon as the mother withdrew her consent to the purported relinquishment, petitioners resorted to the expedient of a less stringent custody proceeding under § 14-10-123.
As a result, the prospective adoptive parents merely had to show that an award of permanent custody in their favor was in the child’s best interest. They were not required to demonstrate that the mother knowingly, voluntarily, intelligently, and after counseling, was relinquishing her child. Nor were they required to show that the mother was unfit, as the state would have had to prove in a D & N proceeding.
Petitioners could not have satisfied these tests had they been required to do so. Clearly, the mother’s consent to the relinquishment was invalid as a matter of law, and her unfitness could not be proven. Indeed, the trial court explicitly found her to be a fit parent.
Therefore, by affirming the trial court, the majority implicitly holds that any time an adoption fails or is invalidated for failure to comply with the relinquishment and adoption statutes, the prospective adoptive parents can simply petition the court for permanent custody of the child under § 14-10-123. It is even conceivable that § 14-10-123 will be invoked in the first instance to by-pass the more stringent requirements of the Children’s Code altogether. Such circumvention of the Children’s Code would defeat the important public policies and constitutional safeguards underlying the relinquishment and adoption statutes.
More importantly, this result relegates the minor children in such controversies to a legal limbo in which the natural parents’ rights are not legally terminated, and yet, the children’s custodial caretakers are precluded from adopting them. I find it unthinkable that the General Assembly intended such an unjust result.
In a similar case, which has attracted national media attention, DeBoer v. Schmidt, — U.S. —, 114 S.Ct. 1, 152 L.Ed.2d 755 (1993), Justice Stevens wrote:
Applicants’ claim that Jessica’s best interests will be served by allowing them to retain custody of her rests, in part, on the relationship that they have been able to develop with the child after it became clear that they were not entitled to adopt her. Neither Iowa law, Michigan law, nor federal law authorizes unrelated persons to retain custody of a child whose natural parents have not been found to be unfit simply because they may be better able to provide for her future and her education. As the Iowa Supreme court stated: “[CJourts are not free to take children from parents simply by deciding another home appears more advantageous.” In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992).
The Colorado Supreme Court used similar language in Turner v. Hunter, supra, 142 Colo, at 132-33, 350 P.2d at 204, more than thirty years ago in ordering the return of three minor children to their natural mother:
We fully understand and appreciate the desire of the Turners to keep Phyllis, who has been treated by them as their own since infancy.... Nevertheless, the trial court has found that the mother of Phyllis *1352is a fit person to have custody of her daughter.... We cannot award custody of children to aunts and uncles against the claim of parents for the reason that the former can better afford to make expenditures upon the children than can the latter.
Therefore, based on the foregoing considerations, I would hold that petitioners lacked standing to seek custody of the child under § 14-10-123 of the Dissolution Act, and that § 14 — 10—123(l)(b) and (c) cannot be used to award custody to prospective adoptive parents in the case of a failed relinquishment and adoption under the Colorado Children’s Code.
IV. Constitutional Standard
Even if § 14-10-123 could be interpreted to allow the prospective adoptive parents to initiate a custody proceeding, I believe the constitution requires that before a “best interests of the child” standard is applied, there must be a finding by a clear and convincing evidence standard that the natural mother is unfit. Because such a standard was not applied here, I believe that § 14-10-123 was applied unconstitutionally.
In rejecting the mother’s constitutional arguments, the majority gives short shrift to the fundamental constitutional liberty interests of a parent in a child as described by the U.S. Supreme Court. The majority also ignores numerous decisions, both from states which have adopted analogs to § 14-10-123 and other states, which have held that constitutional due process applies not just to terminations of parental rights, but to awards of permanent custody to third parties as well. Indeed, I believe the great weight of authority of decisions from other state courts supports my conclusion regarding the mother’s constitutional rights here.
A.
For many years, the U.S. Supreme Court has recognized the relationship between a parent and a child as involving a fundamental constitutional right.
By 1981, enough eases involving a parent’s constitutional liberty interests in his or her children had come before the U.S. Supreme Court that Justice Stewart was able to write: “The court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody, and management’ of his or her children is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640, 649-650 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972)).
Family privacy and parental authority have been afforded both substantive and procedural protection under the due process clause. This cluster of constitutional protections includes, inter alia, the right of the family to live together, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), the right of parents to raise their children as they deem fit, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (the State cannot require Amish parents to send their children to school beyond 8th grade), and the right of parents • to educate their children without state interference. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Here, the trial court recognized the general rule that parental rights cannot be terminated without notice and a hearing, Stanley v. Illinois, supra, and without clear and convincing evidence of parental unfitness. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
I believe the mother here has a constitutionally protected interest in the custody of her child. I base this conclusion largely on cases dealing with the rights of unwed fathers: Stanley v. Illinois, supra; Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); and Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). In these cases the court held, either expressly or by negative implication, that unwed fathers have a constitutionally protected inter*1353est in having the opportunity to establish a parent-child relationship with their children. A common thread woven through these cases is that substantive and procedural constitutional guarantees are implicated whenever a parent demonstrates a commitment to the responsibilities of parenthood by “coming forward” to participate in the rearing of his child.
Taken together, Quilloin v. Walcott, Ca-ban v. Mohammed, and Lehr v. Robertson suggest that the mother here has a constitutionally cognizable interest in the relationship with her child. Here, she came forward before the child was 6 months old and, by requesting that custody of the child be returned to her, demonstrated her willingness to assume both the “opportunity” and “some measure of responsibility” for the child’s future.
One additional U.S. Supreme Court case deserves mention.
In Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), individual foster parents and an organization of foster parents sued New York State and New York City officials challenging the constitutionality of procedures governing the removal of foster children from foster homes. The U.S. Supreme Court reversed a lower federal court ruling that the removal procedures were constitutionally defective.
The Court stated:
No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship.
It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right — an interest the foster parent has recognized by contract from the outset. Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.
Smith v. Organization of Foster Families, supra, 431 U.S. at 844-47, 97 S.Ct. at 2109-2111, 53 L.Ed.2d at 35-37.
Based on the foregoing case law and analysis, I conclude that mother’s request for the return of her child, less than six months after his birth, and prior to the commencement of a relinquishment proceeding, was sufficient to give her substantive parental rights and a fundamental liberty interest under the Fourteenth Amendment.
I am aware that some may contend that the child here also has a constitutionally protected liberty interest in his relationship with the prospective adoptive parents. See, e.g., In re Clausen, 442 Mich. 648, 502 N.W.2d 649 (1993) (child’s due process liberty interest in family life is not independent of child’s parents). The U.S. Supreme Court has expressly declined to determine whether a child born out of wedlock has a liberty interest symmetrical with that of his or her parent. Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). Since no constitutional argument has been advanced on behalf of the child here, I do not address that issue.
B.
In addition to these U.S. Supreme Court cases, three states which have adopted the Uniform Act have recognized the natural parent’s fundamental constitutional liberty interests and superior rights to the care, custody, and control of his or her children.
In an Arizona case, the intermediate appellate court refused to apply Arizona’s analog to § 14-10-123, Ariz.Rev.Stat.Ann. § 25-331(B)(2). The court there stated:
We can appreciate the court’s concern for the welfare of the minor child and its desire to act in his best interest. However, when the state deprives a parent of the fundamental right to raise his child, the *1354proceedings must be conducted in strict compliance with the statutes involved and under the aegis of the due process and equal protection clauses of the Fourteenth Amendment.... Appellee’s concern for the welfare of the child should be directed through the statutory remedies available to her in the juvenile court.
Webb v. Charles, supra, 125 Ariz. at 560, 611 P.2d at 565.
Similarly, in In re Marriage of Pierce, 198 Mont. 255, 645 P.2d 1353 (1982) the Montana supreme court held that “[I]t is well settled in the law throughout this country, including Montana, that the right of a parent to custody of his child is a fundamental constitutional right.” It further stated:
Under Montana law it is clear that the only way parental rights can be terminated judicially, absent consent of the biological parents, is under Montana statutes governing child abuse, neglect, or dependency. ... the attempted shortcutting of all Montana statutory and case law governing the legal relationships of parents and children to each other, by using an “executory contract adoption” theory, cannot be approved in custody cases.
In re Marriage of Pierce, supra, 198 Mont, at 260-61, 645 P.2d at 1356-57. (emphasis added).
Finally, in an Illinois case, that state’s supreme court noted that in a custody dispute between a natural parent and a third person, the latter must demonstrate a “compelling reason” why the natural parent should not be granted custody of a child. Relying on U.S. Supreme Court decisions, the Illinois court concluded that “the interest of a parent in the care, custody, and control of his or her child is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party.” In re Custody of Townsend, 86 Ill.2d 502, 507-14, 56 Ill.Dec. 685, 688-91, 427 N.E.2d 1231, 1234-37 (1981).
C.
In addition to these decisions from states adopting the Uniform Act, numerous appellate decisions have relied on the U.S. Supreme Court’s holding in Santosky v. Kramer, supra, that natural parents have a fundamental liberty interest in the care, custody, and management of their children. In San-tosky, the Supreme Court ruled that a clear and convincing evidence standard must be applied before parental rights could be terminated.
While the majority notes correctly that the Santosky decision involves a termination of parental rights, several state court decisions have applied Santosky to custody disputes between natural parents and third parties, relying on the significant diminution of parental rights when a third party is awarded permanent custody.
Thus, for example, an Ohio appellate court concluded that an award of permanent custody by that state’s probate court “effectively divests the natural parents of all parental rights, privileges and obligations.” In re Adoption of Mays, 30 Ohio App.3d 195, 198, 30 OBR 338, 341, 507 N.E.2d 453, 456 (1986).
Also, in Barstad v. Frazier, 118 Wis.2d 549, 555, 348 N.W.2d 479, 483 (1984), the Wisconsin Supreme Court concluded that: “A change of custody may result in as complete a severance of child-parent ties as does termination. The day to day contact between the child and one having custody can create a relationship that may leave the birth parent almost an intruder. All of the day to day interactions between the parent and child are bound to be diminished if not eliminated where the parent comes on the scene as a court permitted ‘visitor.’ ”
Additionally, a New Jersey court, after noting the constitutional right of natural parents to custody of their children, held that:
Under ordinary circumstances, a custody action by a third party against a natural parent is more like a termination action than a custody action between biological parents. Although visitation may be preserved, such an award destroys any pretense of a normal parent-child relationship and eliminates nearly all of the natural incidence of parenthood including the everyday care and nurturing which are part and parcel of the bond between a parent and child. Thus, normally, when a third *1355party seeks custody as against a natural parent, the standard should be the termination standard of unfitness.
Zack v. Fiebert, 235 N.J.Super. 424, 432, 563 A.2d 58, 63 (1989).
In situations similar to the one presented here, numerous courts have held that there must be a finding of parental unfitness or similar extenuating circumstances before a natural parent can be divested of permanent custody. See, e.g., Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992). Interestingly, courts applying a constitutional right in these circumstances have relied on the long-standing “parental preference” principle which generally requires a finding of parental unfitness or forfeiture of parental rights before a natural parent can lose custody of his or her child. Indeed, the Stuhr court noted that 38 jurisdictions have adopted the “parental preference” principle in child custody disputes. See Stuhr, supra, at 240 Neb. at 245, 481 N.W.2d at 216 (citing illustrative decisions).
While older Colorado cases have espoused the “parental preference” doctrine, see Turner v. Hunter, 142 Colo. 129, 350 P.2d 202 (1960); Everett v. Barry, 127 Colo. 34, 252 P.2d 826 (1953), more recent Colorado decisions have not done so. More recent cases have relied on a “best interest” standard even in the absence of a finding of parental unfitness. See Abrams v. Connolly, 781 P.2d 651 (Colo.1989); In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992). However, none of the more recent Colorado cases upholding custody awards to non-parents has considered a natural parent’s constitutional challenge to the award.
Based on the abundance of constitutional law supporting the proposition that a natural parent has a fundamental constitutional liberty interest in the custody, care, and control of his or her child, I believe that § 14-10-123 must be interpreted consistently with those decisions.
I agree with the reasoning of the Kansas Supreme Court in Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), which found unconstitutional a statute similar to that involved here. Concluding that the statute both destroyed the parental preference doctrine and allowed a third party to take custody of a minor child even though the natural parent is fit, the court concluded that the statute violated the parent’s due process rights.
The Sheppard court found that the statute did not appear necessary to further the state’s interest in protection of children, because the state’s juvenile code provisions to protect neglected children and provisions in the civil code to provide for changes in custody sufficed. Additionally, it found that the statute improperly allowed a trial court to determine that the best interests of the child would be served by placing it with third persons, even though the parent might be “perfectly fit, willing, and able to care for and raise the child.” Sheppard v. Sheppard, supra, 230 Kan. at 152, 630 P.2d at 1127.
In sum, as the Kansas Supreme Court concluded:
A parent who is not found to be unfit, has a fundamental right, protected by the due process clause of the United States Constitution, to the care, custody and control of his or her child, and that the right of such a parent to the custody of the child cannot be taken away in favor of a third person, absent a finding of unfitness on the part of the parent. We hold that [the Kansas statute] which destroys that fundamental right, is violative of the due process clause and therefore unconstitutional.
Sheppard v. Sheppard, supra, 230 Kan. at 154, 630 P.2d at 1128.
Because the trial court here explicitly found that the natural mother was a fit parent, I believe her constitutional rights were violated by the application of a “best interest” of the child standard.
Accordingly, I would reverse the decision of the trial court and award custody to the natural mother.