{dissenting). The Divorce Reform Act and public policy do not permit the family court to approve child custody changes pursuant to the unexamined stipulation of the parties.1 Further, such prac*789tice has been specifically disapproved by the Wisconsin Supreme Court. Therefore, I respectfully dissent.
At the outset, I disavow the position the majority attributes to me. I do not suggest that a change of custody pursuant to stipulation of the parents requires a "full-scale, 'contested-case’ inquiry.” Majority opinion at 786. I do not agree, however, that the family court, when presented with a custody change stipulation, fulfills its responsibility under sec. 767.10, Stats., by entering a custody change order without any examination of the circumstances.
In King v. King, 25 Wis. 2d 550, 555, 131 N.W.2d 357, 360 (1964), the court stated:
While parents may stipulate as to custody, the agreement should not be approved by the court unless it insures and promotes the best interest of the children. We do not approve of a trial court’s granting custody on a stipulation without taking testimony calculated to ascertain what is best for the children or otherwise inquiring into the best interest of the children. A contract between the parents contemplating a divorce should be given serious consideration by the court as it normally expresses what may be best for the child; nevertheless it does not bind the court or preclude a modification of a decree based thereon. Since a child of a broken home has rights which should be *790protected, the controlling question is not what the parties agreed to but what is in the best interest of the child. [Citations omitted.]
In Weichman v. Weichman, 50 Wis. 2d 731, 737, 184 N.W.2d 882, 885 (1971), the court stated:
[T]he custody of the child was stipulated, but such a stipulation is not binding upon the court and should not be approved unless the court determines independently that what is stipulated promotes and insures the welfare of the child. Testimony on the stipulation should be taken.
The majority does not claim that these precedents have been overruled by subsequent decisions or legislative action.2 These precedents bind the Court of Appeals. Wausau Underwriters v. Dane County, 142 Wis. 2d 315, 326, 417 N.W.2d 914, 918 (Ct. App. 1987). *791On the basis of those precedents, and the plain language of secs. 767.10,3 767.24(2) and 767.32(2), Stats., I conclude that a stipulation changing custody may not be approved by the family court unless the court satisfies itself by an appropriate investigation4 that the custody arrangement insures and promotes the best interests of the child.
I agree with the majority that because the children were in Janet’s care, it was not necessary for the court to find that a change in custody was "necessary” to the children’s best interests. Marriage of Tieberg v. Ehlke, 137 Wis. 2d 228, 233, 404 N.W.2d 84, 86 (Ct. App. 1987).5 However, I vigorously dissent from the majority’s conclusion that Tieberg holds that, where the child is in the care of the noncustodial parent, a change of custody may be effected without considering whether such change is in the best interests of the child. Tieberg, 137 Wis. 2d at 234, 404 N.W.2d at 86, simply holds that where the child is in the care of the noncustodial parent, the higher standard, requiring a showing by substantial evidence that "the change of custody was necessary,” does not apply. The majority attributes to the Tieberg court a holding which it did not make — that a change of custody is not a "custody *792determination.” The majority concludes that sec. 767.24(2), Stats., which requires the family court, in making a "custody determination,” to consider "all facts in the best interest of the child” is called into play in a custody change only by the express language of the last sentence of sec. 767.32(2). Contrary to the majority, I conclude that any change of custody is a "custody determination” within sec. 767.24(2).
My conclusion — that a change of custody requires the family court to make an inquiry as to whether the best interests of the child are served thereby — is supported by the legislative history of the divorce and custody statutes and the cases interpreting those statutes.
As King, 25 Wis. 2d at 555, 131 N.W.2d at 360, and Weichman, 50 Wis. 2d at 737, 184 N.W.2d at 885, hold, under former secs. 274.24 and 247.25, Stats. (1975),6 the divorce court had an affirmative duty, despite the stipulation of the parties, to inquire whether the custody determination was in the best interests of the child. The acquiescence by the family court in unexamined stipulations of the parties is a practice not to be encouraged. Schmitz v. Schmitz, 70 Wis. 2d 882, 886, 236 N.W.2d 657, 660 (1975). The majority concedes that the case law at the time of enactment of the Divorce Reform Act is still applicable.7 Majority opinion at 787.
*793Although the Divorce Reform Act, ch. 105, Laws of 1977, added child custody and visitation to the issues which divorcing parties may stipulate to under sec. 247.10, Stats. (1975), now sec. 767.10, Stats., the requirement that the stipulation be approved by the court was retained. I do not discern from this and other changes made by the Divorce Reform Act any lessening of the legislature’s concern for the interests of children of broken marriages. On the contrary, the provisions of ch. 767 as affected by the Divorce Reform Act and subsequent legislative action evince a heightened legislative concern for the welfare of such children.8 In In re Marriage of Millikin v. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573, 576 (1983), the court concurred with our conclusion in Corcoran v. Corcoran, 109 Wis. 2d 36, 38-43, 324 N.W.2d 901, *794902-04 (Ct. App. 1982), that the enactment of the Divorce Reform Act was intended to make custody changes harder to obtain.
I therefore conclude that the Divorce Reform Act and amendments thereto did not change the law that a stipulation changing custody may not be approved by the court unless the court satisfies itself by an appropriate investigation that the custody arrangement insures and promotes the best interests and welfare of the child. The family court herein concluded: "It is generally in the children’s best interests if their parents agree as to the custodial arrangement for the children ....” While the court’s observation will be generally true,9 there is a public interest involved in the transfer of custody of children which is not satisfied by agreement of the parents. See Koslowsky v. Koslowsky, 41 Wis. 2d 275, 281, 163 N.W.2d 632, 635 (1969) (best interests of the child rule transcends an agreement or stipulation of the parties).
One of the purposes of court approval of custody arrangements is that the court’s consideration of the factors under sec. 767.24(2), Stats., may alert the court to the fact that neither parent is able to care for the child adequately. It may be necessary that the court declare the child in need of protection or services and transfer legal custody to a relative of the child, to a county department or to a licensed child welfare agency.10 Sec. 767.24(l)(c)l. If the parties were able to *795transfer custody by unexamined agreement, this provision for the protection of the child’s best interests could be avoided.
[T]he trial court does not function solely as an arbiter between two private parties. Rather, in his role as a family court, the trial court represents the interests of society in promoting the stability and best interests of the family. It is his task to determine what provisions and terms would best guarantee an opportunity for the children involved to grow to mature and responsible citizens, regardless of the desires of the respective parties. This power, vested in the family court, reflects a recognition that children involved in a divorce are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.
Kritzik v. Kritzik, 21 Wis. 2d 442, 448, 124 N.W.2d 581, 585 (1963) (footnote omitted). The same considerations apply to custody determinations subsequent to the Divorce Reform Act. See Sommer v. Sommer, 108 Wis. 2d 586, 593, 323 N.W.2d 144, 148 (Ct. App. 1982).
The family court did not represent the interests of society when it entered the custody change order upon the unexamined stipulation of the parties. I would vacate its June 23, 1986 order.
It is undisputed that the family court made no inquiry as to whether the proposed change was in the best interests of the children. The order amending the judgment provided:
*789By stipulation of the parties,
IT IS HEREBY ORDERED THAT:
Custody of the parties’ minor children, Jennifer R. Beecher, born May 4, 1969, and Nathan T. Beecher, born September 9, 1971, shall be with petitioner, Janet Iona (Beecher) Luhman, thereby amending Paragraph 4, Section a of the Judgment of Divorce, attached hereto and incorporated by reference herein.
All other provisions of the Judgment of Divorce, not inconsistent with that stated herein, shall remain in full force and effect.
The majority attempts to distinguish King and Weichman on the grounds they involved contested custody cases. King, 25 Wis. 2d at 555, 131 N.W.2d at 360, however, considered the effect of a stipulation made in a nonadversarial situation. The mother claimed she should not be bound by a stipulation she voluntarily entered into. Her position is the same as that which Robert now advances. The court prefaced the quoted statement by saying: "But assuming the facts to be as the plaintiff understood them, such an agreement is subject to approval of the court.” Id. King explains the obligation of the family court when asked to approve a stipulation regarding child custody. Weichman, 50 Wis. 2d at 737, 184 N.W.2d at 885, adopts the holding of King.
It is not whether there is contest over custody which triggers the responsibility of the family court; it is the need to insure that the best interests of the child are protected that requires the family court to make an investigation before approving a stipulated custody change. In a perfect world such an investigation would not be necessary. In that world, judges would be "magnificant anachronism[s]. ”
Section 767.10, Stats., provides: "The parties in an action for [a] ... divorce ... may, subject to the approval of the court, stipulate for ... custody-” (Emphasis added.)
In the normal course, testimony will be taken by the trial court. However, an evidentiary hearing may not be necessary if, for example, the stipulation is supported by affidavits and/or reports of the social service agency and the family court commissioner. Social service workers’ reports are recommended tools in determining the best interests of the child. Fritschler v. Fritschler, 60 Wis. 2d 283, 287, 208 N.W.2d 336, 338 (1973).
Robert is incorrect that the higher necessary-to-the-child’s-best-interest standard applies to this case.
Former sec. 247.25, Stats. (1975), permitted a change of custody as "the benefit of the children shall require.” What is now the first sentence of sec. 767.32(2), Stats., was taken without change in substance from former sec. 247.24(2) (1975).
The majority relies on Marotz v. Marotz, 80 Wis. 2d 477, 484, 259 N.W.2d 524, 528 (1977), decided on a factual background which arose prior to the Divorce Reform Act. In Marotz the court was presented with a custody fait accompli — custody had been stipu*793lated to by the parties. All that Marotz held was that custody was to be litigated de novo when a dispute arose following a stipulated custody award. Id. at 483-84, 259 N.W.2d at 528. In Corcoran v. Corcoran, 109 Wis. 2d 36, 43, 324 N.W.2d 901, 904 (Ct. App. 1982), we concluded that the modification procedures outlined in Marotz were no longer applicable under sec. 767.32(2), Stats. Contrary to the majority’s assertion, I do not contend that the quoted statement from Marotz is dicta. It is, however, irrelevant.
See secs. 767.02(3), 767.085(1)(g) and 767.085(5), Stats, (commencement of an action affecting the family which affects a minor child constitutes an application to the department of health and social services for services on behalf of the minor child under sec. 46.25, Stats.). The mandatory counseling under sec. 767.081 includes assistance to the parties in planning for the needs of their minor children. If custody is contested the trial court shall appoint a guardian ad litem to represent the interests of the children and to be an advocate for the best interests of the children, considering the factors under sec. 767.24. Sec. 767.045. Divorcing parents who agree to share joint custody may not do so unless the court finds that a joint custody arrangement would be in the best interests of the child or children. Sec. 767.24(l)(b).
But see Van Cleve v. Hemminger, 141 Wis. 2d 543, 546, 415 N.W.2d 571, 572-73 (Ct. App. 1987) (recognizing that the children’s best interests are frequently compromised for reasons of spite, hostility or economics).
The majority suggests that the police and social service agencies may be relied on to set in motion the procedures under the children’s code to deal with abandoned and neglected children *795and disrupted families. The majority thus attacks the legislative decision to make it a function of the family court to determine whether the best interests of the child may require that neither parent be given custody. It is our function to interpret and apply the legislative will, not to thwart it by a construction of a statute which is contrary to the legislature’s purpose.