dissenting:
I dissent. There is nothing in the trial court’s findings of fact or in the evidence which supports the conclusion of that court and a majority of this Court that the presumption in favor of the natural parent has been overcome.
The trial court found that the defendant father “has failed to sacrifice his own interest and welfare for the child’s interest and welfare” and “lacks the sympathy for and understanding of the child that is characteristic of parents generally.” However, none of the other findings of fact provide any supporting reasons or basis for those findings. On the contrary, every other finding of fact and the undisputed evidence indicate that there was little or nothing lacking about the father.
When the divorce was granted to the plaintiff in June of 1981 and she was given custody of Brian, she was living in Salt Lake City. She still lived there at the time of the change of custody hearing held November 22, 1984. However, she had sent Brian early on to Chico, California, to live with his great-grandmother, Ona Landrum, during the week and with the plaintiff’s parents, William and Karla Kornmayer, on weekends. In order to be closer to Brian so that he could visit him often, the father quit his employment in Salt Lake City and moved to Reno, Nevada, where his parents resided. In the approximately three years between the time the divorce was granted and the father brought this petition for change of custody, he made the 360-mile round trip from Reno to Chico ten or twelve times. In addition, each year he brought Brian to Reno at Easter and Thanksgiving and each summer for a visit. In 1983, Brian was with his father three weeks in Reno and, in 1984, six weeks. During these extended visits, they went camping, bike riding, and picnicking in the out-of-doors. The father purchased two bicycles for his son, one housed in Reno and one in Chico. He gave his son gifts on his birthday and at Christmas. He learned sign language so that he could communicate with him. In 1983, he wrote his son five letters and, in 1984, ten letters. Because the boy is deaf, telephone calls were not possible. The trial court found that father and son had a “good relationship” and that there was love between them. The financial ability and good moral character of the father have not been questioned.
Against that backdrop of evidence of concern and love, one is left to wonder what more this father could have and should have done for his son. In its memorandum decision, the trial court noted that the defendant “has failed to pay his child support payments for Brian’s care.” However, the court also found that in the two- and one-half-year period prior to January 1, 1984, the father paid his ex-wife $6,430 for child support, none of which she sent on to her grandmother or her parents who actually were caring for Brian. After that, the father endeavored to send the child support directly to Brian’s great-grandmother with whom he was living, but she refused the payments. While the father may have erred in his judgment not to continue to send child support payments to his ex-wife, his discontinuing payments cannot be said to indicate any lack of love or concern on his part for his son since the money was not being used for his care. Counsel for the Kommayers suggests in her brief that the father could have visited his son more often and could have written him more letters. There is nothing in the findings of fact which would indicate that the trial court thought that the father’s performance in these regards was deficient. I certainly cannot say that under the circumstances, he should have visited and written more often.
In sum, there are no reasons of any substance why this father should be denied custody of his son. If the presumption reiterated in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982), is to mean anything at all, it certainly cannot be rebutted for the insubstantial reasons which are suggested here. I cannot subscribe to the majority’s reasoning that although the trial court found that love existed between the defendant and his son, it did not measure up to the “strong mutual bond” which Hutchison requires. Of course, since Brian had *1255lived with his great-grandmother and his grandparents for over three years and he had never lived with his father, his strong attachment to them would only be natural and expected. However, that fact does not reflect adversely on the father who, for a noncustodial parent, had established a good, loving relationship with his son.
Brian is fortunate in that there are two good homes available to him. The custody evaluation showed that Brian would do equally well in either home. The great-grandmother and the maternal grandparents are entitled to high marks for their devotion to this child. I can appreciate the reluctance of the trial court and the majority of this Court to disturb a child’s living environment which is wholesome and in which he is happy. The trial judge noted in his memorandum opinion that “this case presents one of the most difficult decisions this court has had to make. Not that the facts are that difficult nor is the law that complicated, but the emotional concern for the subject of this case presents the gravest of concern.” Nevertheless, the law of this state is that a child of a marriage terminated by divorce should live with one of his parents if either is willing and capable of caring for the child. Without taking anything away from the “fantastic” job done by the great-grandmother and the grandparents, the father here is unquestionably entitled to custody.
As was sagely pointed out in Hutchison v. Hutchison, supra, by Justice Oaks:
The parental presumption is not conclusive, State in re R.L., 17 Utah 2d 349, 411 P.2d 839 (1966), but it cannot be rebutted merely by demonstrating that the opposing party possesses superior qualifications, has established a deeper bond with the child, or is able to provide more desirable circumstances. If the presumption could be rebutted merely by evidence that a nonparent would be a superior custodian, the parents’ natural right to custody could be rendered illusory and with it the child’s natural right to be reared, where possible, by his or her natural parent.
My review of the cases decided by this Court on the issue before us, as cited in the majority opinion, reveals that parents have been denied custody only when they have been guilty of abandonment or neglect, have failed to financially support the child, or were frequently intoxicated. I have been unable to find any case where a parent has been stripped of the right to raise his or her own child, in favor of a nonpar-ent, for the insubstantial reasons which are suggested here.
HALL, C.J., concurs in the dissenting opinion of HOWE, J.