(dissenting).
I dissent from the views expressed by the majority. The majority has equated the concept of visitation rights with the legal definition of custody and, in the process, has deprived the Alaska courts of the ability to grant adoptions in cases where adoption may, in fact, be in the best interest of the child or children involved.
I feel strongly that biological parenthood should never be used as a device to deprive children properly before the Alaska courts of a judicial determination on whether or not adoption is in their best interest. While I understand the fears of separated and divorced parents that they may be somehow deprived of their children by unjust means, I do not regard the denial of hearing in court on such an issue the better method of safeguarding against such occurrence.1
*715In my view, the judicial determination of what is the best interests of the children is the primary goal. A searching inquiry into the basic purpose of our statutory scheme reveals this purpose.
While Roman law and the civil law derived from it have long provided for legal adoption, no such procedure developed within the English common law.2 Massachusetts, in 1851, was the first state in the nation to provide by statute for adoption; other states followed shortly thereafter. In 1865, Charles Dudley Field, Chief of the Code Commissioners appointed by the New York Legislature to draft a “civil code”, presented to them his final draft. Included among the provisions of that code, in chapter 2, were a number of sections devoted to adoption. The Code Commissioner’s comments appended to section 107 of that Act are quite instructive:
The total absence of any provision for the adoption of children is one of the most remarkable defects of our law. Thousands of children are actually, though not legally, adopted every year; yet there is no method by which the adopting parents can secure the children to themselves except by a fictitious apprenticeship, a form which, when applied to children in the cradle, becomes absurd and repulsive. It is, indeed, so inappropriate in every case, that it is rarely resorted to. The consequence is almost invariably, that if the real parents of the child live to see it grow to an age of usefulness and intelligence, they are certain to attempt to reclaim it, sometimes through the mere selfishness of natural affection, but more commonly from base and sordid motives. The chances of an adopting parent for the retention of the child upon which, perhaps, his whole heart is centered, are therefore in the inverse ratio to the degree of his benevolence in its selection, and of his care and affection in its training. Benevolence dictates a choice from among children whose parents are least able or willing to take care of them. To relieve a child from a cruel and heartless parent is a greater mercy than to take even an orphan. Yet these are the parents who are, of all others, most likely to reclaim the child as soon as any money can be made out of it. Affection will give the child such a training as will develop its beauty and intelligence to the highest degree. Yet every grace of the child is but a premium upon the extortion of .its heartless parents. This is not mere theory. Facts within the knowledge of almost every one justify these statements. There are very many childless parents who would gladly adopt children, but for *716their well founded fears that they could never hold them securely.3
These sentiments, so modern in expression, unfortunately did not lead to the widespread protection of dependent and neglected children envisioned by the commentators.4 Partly from too great a dependence on legalistic niceties so common in the late nineteenth century, and partly because of an unrealistic conception of parent-child relationships, courts consistently refused to grant adoptions that would have protected children in deference to the sensibilities of natural parents who would play little part in the growth and development of the affected children.5 Thus, thousands of children throughout the United States found themselves in the bleak surroundings of frequently understaffed and ill-accommodated institutions simply because their parents, having no responsibility for them, nevertheless (whether through the “mere selfishness of natural affection or the base and sordid motives” mentioned by the code commentators) refused to “consent” to adoption.6
The problem of consent arises because children were originally viewed as chattels and adoptions were viewed as a contractual relationship between the natural parent or other custodian surrendering parental rights and duties, and the prospective adoptive parents assuming those rights and duties. Thus, since a contract cannot be executed in the absence of mutual agreement, an adoption could not be effected without the consent of the natural parents.7
From the beginning, however, in order to carry out the intentions of the statute, a number of circumstances were set forth under which a parent’s consent could be dispensed with. Illustrative is the Field Code provision:
Sec. 110. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or of cruelty, and for either cause divorced, or adjudged to be a habitual drunkard, or who has been judicially deprived of the custody of the child, on account of cruelty or neglect.
The original Alaska statute8 was in form essentially the same as this Field *717Code provision.9 The present section is AS 20.10.040. Paragraph five provides in relevant part:
Consent not required. Consent for adoption of a minor is not required . (5) from a divorced parent who was not awarded full or parttime custody of the child; but the parent shall be personally served with a copy of the petition and notice of hearing inside or outside the state not less than 20 days before the date of the hearing .
AS 20.10.040(5) provides that consent is not needed from a parent who does not have full or part-time custody. The majority finds that a reasonable visitation right is tantamount to part-time custody, and the parent’s consent is necessary.10
Appellant additionally argued that it would be a denial of equal protection to require consent of the non-custodial parent in the absence of gross unfitness on his part on the theory that since divorce has nothing to do with moral obliquity, there is nothing in the grant of custody in a divorce action which terminated the right of either parent.11 Thus, any subsequent adoption proceeding can only advance to full hearing when “gross neglect” of the noncustodial parent can be established.
It is my opinion that each of these positions is too narrow an interpretation of the various constitutional rights involved and, if followed to the logical conclusion, would make the rights of the parents paramount over the rights of the children. While *718several recent cases of the Supreme Court of the United States12 have reaffirmed the doctrine of parental rights, these same cases and a number of our own13 have clearly-recognized the constitutional rights of children.
In order to give effect to the views expressed in all of these cases, I would find that the veto power expressed in the consent statute, AS 22.10.040, should be strictly construed to those incidents clearly spelled out in the statute. If such a veto in a noncustodial parent is expanded in areas not specifically spelled out by statute, the result will be to deprive the child of a judicial determination of the propriety of an adoption, a possibility which could work injustice and hardship.
It must be emphasized that availability for adoption, coupled with the noncustodial parent’s loss of a veto of that adoption, does not mean that an adoption will be allowed. In many cases, a parent who is unable to provide support and care to a child could nevertheless maintain a relationship with him such that an adoption terminating that relationship would be unwise and not in the child’s best interest.14
By the same token, many children may have reached an age at which they do not wish to be adopted. Adoption is of primary value almost in indirect proportion to the age of the child. The younger the child, the more he would be served by establishing a permanent new parental relationship.15
A further caution should be interjected. This interpretation of AS 20.10.040(5) does not mean that every child whose parents are divorced and every child who is temporarily taken from the home because of inadequacies in that home would be immediately adopted. Someone must develop a sufficient relationship with the child to file a petition and notice, and an opportunity to defend must be given the parents. Further, indigent parents are entitled to the appointment of counsel. The factor which more than any other justifies termination of parental rights and availability for adoption is long-term separation from the natural parents, whether from the parents’ fault or for reasons beyond their control. Thus, it is only when the child has had an opportunity to develop a close personal relationship with a third party that that third party should be allowed to adopt it. The development of that relationship generally takes a long period of time.
The interpretation placed on AS 20.10.-040(5) will not mean that the children of the poor will become the prey of wealthy childless families. No court has ever viewed the child’s best interest on a purely material or economic scale. As Martire and McCandless point out:
Superficial factors, such as social and economic status and prestige are essen*719tially unimportant to the young child. These kinds of things are important only to adults in our society .... It can be emphasized that the child will be most comfortable and most secure where he is honestly loved and respected, no matter what the social or economic situation is. His ability to adapt is almost unlimited, provided he feels secure. In concrete terms, it is better for a child to be loved and respected by poor people than to be rejected and not accepted by rich people.16
But, it is equally true that love and affection are not necessarily synonymous with a natural parent-child relationship:
In light of the above factors, it is fair to say that biological parenthood is of less importance to the maturing child than psychological parenthood. As far as the child is concerned, he need not essentially care who loves him as long as someone does. Biological factors may lay the groundwork for future physical development, but the future personality development is conditioned by people who may or may not be biological parents. There is no a priori reason why a child should love and respect biological parents more than anyone else. He will like and learn from the people who are kind and helpful no matter what the blood relation. With this factor in mind, we need not be concerned with the child’s reaction to new parents if the new parents are equally helpful to and accepting of him. The child will certainly have to adjust to new people under any circumstances of adoption but he will not consider the factor of blood relationship except, as others emphasize its importance.17
The courts of Alaska are clearly able to determine what the best interests of the children are in cases such as the one at bar. Conversely, it is too important an issue to be left to the possible whim of an absent parent.
In this case, the trial court held two separate hearings, where it heard the testimony of the mother and one of the children. It heard testimony concerning appellant’s very infrequent communications with the children, the one seemingly unhappy visit made by the children to their father in California, the child’s feeling of rejection by his natural father, and the strong family ties to their prospective father. The testimony also indicated a -failure by the natural father to meet support obligations while the prospective adoptive father has been supplying most of the children’s needs for a period in excess of four years.
While appellant was notified of his right to appear he chose riot to come forward or present testimony bearing on the issue, apparently on the advice of legal counsel.18
Under these circumstances, I would uphold the findings of the trial court that adoption would be in the best interests of the children.19
*720I am further disturbed that the present opinion will cause substantial problems to the trial courts and prospective adoptive parents in the case of children of unwed parents. If the married father who does not have custody may veto an adoption, it appears that under Stanley v. Illinois20 a natural father may be permitted the same veto.
The only alternative to such veto is to have extensive hearings at the time of birth with opportunities to be present by the natural father. The practical problems of such a course are almost limitless. What is to be done when the natural father is unknown or the mother refuses to disclose his name? What is to be done in those cases where there is a possibility the natural father is unaware of the birth? What happens to the baby during such a period ? Are adoptions granted without consent of the natural father invalid? Since a great share of adoptive proceedings take place in this context, the weight of the present opinion is impossible to determine. The alternative court hearing in all cases avoids such problems.
I would affirm the decision of the trial court.
. Cf. decisions under Ann.Code of Maryland, article 16 § 74 (1973) ; Shetler v. Pink, 231 Md. 302, 190 A.2d 76 (1963) ; Schwartz v. *715Hudgins, 12 Md.App. 419, 278 A.2d 052 (1971) : Goodyear v. Cecil County Dept. of Social Services, 11 Md.App. 280, 273 A.2d 644 (1971), which provide for adoption in absence of parental consent in those strong cases where the facts show it is clearly justified by the evidence and in the best interest of tbe children.
. For a general discussion of the history and development of the law of adoption, see Blom-Cooper, Adoption Applications & Parental Responsibility, 20 Modern L.Rev. 473 (1957) (gives the English and Commonwealth experience) ; Huard, The Law of Adoption: Ancient & Modern, 9 Vand.L.Rev. 743 (1956) ; Katz, Community Decision Makers & the Promotion of Values in the Adoption of Children, 4 J. Family L. 7 (1964) ; Katz, Judicial and Statutory Trends in the Law of Adoption, 51 Geo.L.J. 64 (1962) ; Presser, The Historical Background of the American Law of Adoption, 11 J. Family L. 443 (1971) ; Quarles, The Law of Adoption: A Legal Anomaly, 32 Marq.L.Rev. 237 (1949) ; Symposium : Adoption, 40 Ia.L.Rev. 225 (1955), which includes: Uhlenhopp, Adoption in Iowa, id. at 228-98; Merrill and Merrill, Toward Uniformity in Adoption Law, id. at 299-328; Martire & McCandless, Psychological Aspects of the Adoption Process, id. at 350-63; Yost, Adoption Laws of Ohio: A Critical and Comparative Study, 21 Clev.St. L.Rev. 1 (1972) ; Comment, Revocation of Parental Consent to Adoption: Legal Doctrine & Social Policy, 28 U.Ghi.L.Rev. 564 (1961) ; Note, Natural vs. Adoptive Parents: Divided Children & the Wisdom of Solomon, 57 Ia.L.Rev. 171 (1971) ; Note, Adoption & the Unreasonable Parent, 34 Modern L.Rev. 681 (1971) ; Note, Termination of Parental Rights to Free Child for Adoption, 32 N.Y. U.L.Rev. 579 (1957).
. The Field Code adoption provisions were not adopted in New York until 1873; see Brosman, supra n. 2, passim. Bee also Presser, supra n. 2, at 487.
. See, e. g., Uhlenhopp, supra n. 2, at 230-31.
. See authorities cited n. 2, supra. The accepted relationship between child and foster parents is graphically illustrated by In Re Jewish Child Care Association, 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700 (1959), where a divided New York Court of Appeals removed a happy five year old from an excellent foster home in which she had spent 4½ years of her life because the foster parents were “too attached to the ehild’’ and this attachment might adversely affect the child’s feelings towards its absent mother. This decision is persuasively criticized in Katz, Foster Parents v. Agencies: A Case Study in the Judicial Application of “The Best Interests of the Child” Doctrine, 65 Mich.L. Rev. 145 (1966).
. See Simpson, The Unfit Parent: Conditions Under Which a Child May be Adopted Without the Consent of His Parent, 39 U.Det.L.J. 347 (1962) ; Gordon, Terminal Placement of Children and Permanent Termination of Parental Bights: The New York Permanent Neglect Statute, 46 St. John’s L.Rev. 215, 218-20 (1971) (summarizes statistics regarding children in foster care whose parents neither keep contact with them nor will consent to their adoption by others — estimates 134,000 nationwide in 1968 in this category).
. Cf. Fritts v. Krugh, 354 Mich. 97, 92 N.W.2d 604 (1958) ; Sayre, Awarding Custody of Children, 9 U.Chi.L.Rev. 672, 675 (1942).
. Brown, The Sources of the Alaska and Oregon Codes, part I, 2 UCLA-Alaska L.Bev. 15 (1972). Congress in legislating a code of laws for the then territory of Alaska in 1900 drew primarily from the then laws of Oregon. See City of Fairbanks v. Schaible, 375 P.2d 201, 207 (Alaska 1962). The Oregon Adoption Code was at that time sui generis bat was drawn in part from Field’s work on the New York Codes; see Harris, History of the Oregon Code, part I, 1 Ore.L.Rev. 129 (1922) ; part II, 1 Ore.L.Rev. 184, 210-15, esp. 215 (1922). Variations of the Field *717Civil Code were adopted in a number of the western states. See Harrison, The Half-century of the California Civil Code, 10 Calif. L.Rev. 185, 187 (1922). Its Code of Civil Procedure was more fortunate. See Albertsworth, Theory of Code Pleadings in Code States, id. at 202, 205-06, esp. n. 8 at 205 (1922).
.There is an important difference between the original Alaska and Field Code provisions, however. The Alaska provision makes no reference at all to parents deprived of custody in a divorce proceeding but dispensed with consent where the parent was unfit to “have the care and custody”. The Alaska provision, Carter’s Code § 22 (1900), dispensed with consent as follows:
If either parent is insane or imprisoned in a penitentiary under a sentence for a term not less than three years, or has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, or is an unfit person to have the care and custody of the child, the commissioner may proceed as if such person were dead, and in his discretion may appoint some suitable person to act in the proceeding as guardian ad litem of the child, and give or withhold the consent aforesaid; but in all eases notice to the parent, not laboring under said disabilities of insanity or imprisonment mentioned in this section, shall be required.
This provision remained the law of Alaska through the various codifications until 1947. See CLA 1913 § 449; CLA 1933 § 1143, repealed by cli. 51 SLA 1947; see also ACLA 1949 § 21-3-11 et seq.
. B. g., Marston v. Marston, 389 P.2d 510 (Okl.1964) ; In re Lease, 99 Wash. 413, 169 P. 816 (1918).
Washington lias attempted to meet the problem by incorporating visitation into the no-consent statute. Consent is not needed from the noncustodial parent
[p]rovided, [t]hat a decree in an action for divorce, separate maintenance, or annulment, which grants to a parent any right of custody, control, or visitation of a minor child, . . . shall not constitute such deprivation of custody ....
Rev.Code of Wash. 26.32.040(2). California has also made an attempt to codify visitation rights. Section 224 of the Civil Code provides that consent is not necessary from a noncustodial mother who fails to communicate with the child for one year when able to do so, or from a noncustodial father who fails to pay for the care, support and education of the child for one year when able to dó so.
. See State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971) ; In re Adoption of Smith, 229 Or. 277, 366 P.2d 875 (1961) ; Larsen, Trends & Developments in Oregon Family Law: Parental Rights and Child Welfare, 43 Ore.L.Rev. 193 (1964).
See discussion in Burt, Forcing Protection on Children and Their Parents: The Impact of Wyman v. James, 69 Mich.L.Rev. 1259, 1268-88 (1971) ; Dobson, The Juvenile Court and Parental Rights, 4 Family L.Q. 393 (1970) ; Sullivan, Child Neglect: The Environmental Aspects, 29 Ohio St.L.J. 85 (1968) ; Young, The Problem of Neglect The Legal Aspects, 4 J. Family L. 29 (1964) ; Note, Child Neglect: Due Process for the Parent, 70 Colum.L.Rev. 465 (1970).
. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed .2d 147 (1973) ; Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ; May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) ; 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).
. Breese v. Smith, 501 P.2d 159 (Alaska 1972) ; In re G. K., 497 P.2d 914 (Alaska 1972) ; Doe v. State, 487 P.2d 47 (Alaska 1971) ; R. L. R. v. State, 487 P.2d 27 (Alaska 1971) ; In re G. M. B., 483 P.2d 1006 (Alaska 1971).
. The only difference between deprivation of custody through divorce and termination of parental rights through adoption is that the former may be temporary and the latter is permanent, admittedly an important consideration. Nevertheless, the better reasoned view is that a custody determination once made should not be disrupted in the absence of substantial justification, i. e., the custodial parent should have a preference. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L. Rev. 55, 63-64, 76-77 (1969). The best interest of the child standard is controlling in each case. See Note, Legislative and Judicial Recognition of the Distinction Between Custody and Termination Orders in Child Neglect Cases, 7 J. Family L. 66 (1967).
.Gordon, supra n. 6, at 232-33, 255-60; see Note, Adoption—Psychological v. Biological Parenthood in Determining Best Interests of the Child, 3 Seton-Hall L.Rev. 130, 141-42 (1971).
. Martire and McCandless, supra n. 2, at 355.
. Id. at 354.
. As represented by appellant’s counsel at oral argument. Cf. Stanley v. Illinois, 405 U.S. 465, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
. This standard is considered by the majority to be proper. Michigan has adopted the following elaboration of the best interest of the child in Mich.Stat.Ann. § 722.23(3) (1971):
(a) The love, affection and other emotional ties existing between the competing parties and the child.
(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under [Michigan law] in lieu of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home.
(f) The moral fitness of the competing parties.
(g) The mental and physical health of the competing parties.
*720(h) The home, school and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j) Any other factor considered by the court to be relevant to a particular child custody dispute.
See, also, Watson, The Children of Armageddon : Problems of Custody Following Divoree, 21 Syracuse L.Rev. 55 (1969) ; Bennett, Child Custody: Considerations in Granting the Award Between Adversely Claiming Parents,. 36 So.Calif.L.Rev. 255 (1968).
. 405 U.S. 465, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).