dissenting:
Today the majority holds that notwithstanding the fact that both parties to a divorce action have submitted themselves and the subject matter of their divorce to the Oklahoma court, that court is powerless and without subject matter jurisdiction to enter any custodial order involving a child of the marriage who is not and has not been present in Oklahoma. With this conclusion I must respectfully disagree.
Appellant/father, on March 21, 1989, entered a written general appearance in the Oklahoma divorce action reserving time to plead. On March 29, the father filed an answer and cross petition which alleged that the State of Idaho was the home state of the child. However, the answer and cross petition did not make any objection to the Oklahoma district court entertaining the custodial issue regarding the minor child. In fact, the answer and cross petition of the father reads:
“... and that it would serve the best interest and welfare of the minor children for the court to grant custody of said children to the defendant ...”
Appellant’s prayer in his cross petition reads:
“... grant and award the care, custody and the control of the minor children of the parties to the defendant....”
The record shows that appellant did not raise the question of the court’s judicial power to enter a custodial order until immediately before commencement of trial *40and after he had requested affirmative relief.
Incident to the divorce action was the issue of custody of two children, one residing in Oklahoma, and one residing in Idaho. Title 43, O.S.1991, § 112 provides:
“A. A petition or cross-petition for divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the court:
I. shall make provision for the guardianship, custody, medical care, support and education of the minor children, ...”
As I view the statute, it requires the Oklahoma court, in this case, to make provision for a minor child notwithstanding the fact that he resides outside the state of Oklahoma. In other words, the majority would have the Oklahoma court totally ignore an issue of the marriage simply because that child is not within the state of Oklahoma.
No request was made of the Oklahoma court to invoke the provisions of the UCCJA; appellant objected only to the Oklahoma court entering any type of order concerning the custody and support of the male minor child. This leads to the unacceptable result of having one child of the marriage under a custodial order of the Oklahoma court and the other child being under no custodial order whatsoever.
No custodial proceedings had been commenced in the Idaho court under the provisions of the Uniform Child Custody Jurisdiction Act. We have no competing jurisdictions. Neither had the child been spirited away from Oklahoma or Idaho in an effort to avoid any valid custodial order. The majority holds that the Oklahoma court did not have “subject matter jurisdiction”. I respectfully submit the majority is mistaken. The district court had jurisdiction of the parties, the marriage and the incidences of the marriage.
Title 43, O.S.1991, § 505 reads:
“A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody termination by initial or modification decree if:
II. It is in the best interest of the child that a court of this state assume jurisdiction because:
(a) the child and his parents or the child and at least one contestant have a significant connection with this state, and
(b) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; ...”
The Act further provides in § 505C, that physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody. Without question, the District Court of Muskogee County does have jurisdiction in child custody determinations. There is no doubt that the parents of this child had both submitted themselves to the jurisdiction and authority of the Muskogee County District Court, and that there are significant connections with the state by reason of evidence existing in Oklahoma which could have a direct effect on the question of custody.
At this point I believe it is important to note the child was delivered by the father to the mother immediately following the divorce proceeding. Insofar as the record in this case reflects, the child is now a resident of Oklahoma. The grounds of the motion for new trial and accompanying motion to modify relate to alleged acts which were within the knowledge of the Oklahoma Department of Human Services and which might affect the future care, protection and training of the minor child.
General purposes of the UCCJA are set forth in § 502 of the Act. They are to avoid jurisdictional conflict with courts of other states in custody matters; assure that litigation regarding custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning care and protection is readily available.
The father did not request the Oklahoma court to decline to enter any custodial order pertaining to the male, child, but instead objected to the Oklahoma court entertain*41ing the custody matter in any form. Appellant argued that the child had no significant contacts with Oklahoma, and that his only significant contacts laid in Idaho, but he did not request the court to invoke the provisions of the UCCJA and request an evidentiary hearing before a proper court in Idaho as authorized by § 521 of the Act.
I do not believe the cases of other jurisdictions relied upon by the majority support its conclusion. The California case of In re The Marriage of Leslie and Shimshon Ben-Yehoshua, 91 Cal.App.3d 259, 154 Cal.Rptr. 80 (1979) involved a mother who was a United States citizen and a husband who was a citizen of Israel. The family had lived together in Israel before the mother filed a petition for separation in California after she had been there with the children for only fourteen days. The court issued an ex parte order awarding custody of the children to the mother. Thereafter, without the mother’s consent, the husband surreptitiously removed the children, took them to Israel and did not return. He then instituted divorce proceedings in Israel in which he was awarded temporary custody of the children. In that case we had competing custodial orders and, except for the short period they resided in California with their mother, the children had lived their entire lives in Israel. The court there followed the observation of Bodenheimer in the Vanderbilt Law Review, Bodenheimer, Uniform Child Custody Jurisdiction Act (1969) 22 Vand.L.Rev., 1207:
“As a general proposition the state in which there is the best opportunity to investigate the facts is most qualified to take jurisdiction.” Bodenheimer. op cit. 22 Vand.L.Rev. at pg. 1221.
Because of competing custodial orders and the fact that Israel had most significant contacts, the California Appellate Court held that the trial court should not have proceeded to determine the custody issue in the divorce action.
The Supreme Court of New Jersey, in Neger v. Neger, 93 N.J. 15, 459 A.2d 628 (1983), also was faced with competing custody orders from different jurisdictions when it determined that the New Jersey court should not alter the California decree and held that California was the proper state in which to litigate future custodial disputes between the Negers.
The majority relies, in part, on Owens, by and through Mosley v. Huffman, 481 So.2d 231, 244 (Miss.1985), but Owens also involved competing custody orders from different jurisdictions. The Supreme Court of Mississippi refused to give full faith and credit to the custodial orders of Arizona and refused to recognize the termination decree of Texas because no court had ever considered the polestar issue: the best interest of the child. The court observed the trial judge’s “most somber obligation” was to “look out for the welfare of this child,” and that the chief beneficiary of such a hearing is the child, the benefit to any other party is incidental. The linchpin of the Mississippi court’s opinion was that if the Mississippi court had given full faith and credit to the decrees of Arizona and Texas, the child’s fate would have been determined without a full blown hearing as to what was in her best interest, which would defeat the purpose of the UCCJA.
The case of In re Marriage of Hopson, 110 Cal.App.3d 884, 168 Cal.Rptr. 345 (1980), involved filing a Tennessee custodial decree in California with a competing Arizona decree. Observing that the children had lived in California for a period of eight months, the California court applied the UCCJA and held that at the time proceedings were commenced in Tennessee, the home state of the children was California. The California court in Hopson addressed the pivotal issue in these types of cases, i.e., what is in the best welfare of the child? They also recognized a need to give a measure of finality to custodial decree in order to insure a more stable environment for the child.
Oklahoma was the situs of the only court with the judicial authority to enter any type of custodial order in divorce case for there was no litigation elsewhere. We are not faced with competing custody orders. By objecting to the Oklahoma court entertaining jurisdiction over the child without commencing an Idaho custody ac*42tion or obtaining an Idaho custodial order, the appellant seeks to determine the issues in the divorce case without giving his son his “day in court” to determine what will be in the child’s best interest. With this result I cannot agree. It is to be further observed that custody orders in divorce cases are directed to the parties of the divorce. They are enforced by threat of contempt over the parents and not the children.
As far as the record in this case shows, the child is now and has been since the entry of the divorce decree, a resident of the State of Oklahoma. The evidence which appellant/father alleges to show the unfitness of mother lies exclusively within the boundaries of Oklahoma. This alleged evidence might or might not have an effect on what is in the best interest of the child. I believe the District Court of Muskogee County had the judicial authority to proceed with its custodial orders and should now proceed to hear the motion to modify which it reserved at the time it overruled appellant’s motion for new trial.
For the above reasons, I respectfully dissent.
I am authorized to state that Vice Chief Justice HODGES and Justice ALMA WILSON concur in the views expressed herein.