dissenting.-..
Although the majority opinion is certainly a well reasoned and persuasive one, I must respectfully dissent. I fear that in what undoubtedly was as difficult and close a case for the trial court as it is for this court, my appellate brothers in the majority have merely substituted their opinion for that of the trial judge. In doing so the majority have gone beyond, however unintentionally, the constraints of Rule 52(a), *757N.D.R.Civ.P., which limit review of findings of fact to a determination of whether or not they are “clearly erroneous.” Child custody determinations are deemed to be “findings of fact” within the meaning of that rule as determined in a long line of cases. Such was established initially in Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972), survived some questioning in a concurring opinion in Silseth v. Levang, 214 N.W.2d 361 (N.D. 1974), and returned to unanimity in a number of cases since then. See, e.g., Matson v. Matson, 226 N.W.2d 659 (N.D.1975); DeForest v. DeForest, 228 N.W.2d 919 (N.D. 1975); Keator v. Keator, 276 N.W.2d 135 (N.D.1979); and Muraskin v. Muraskin, 283 N.W.2d 140 (N.D.1979). The evidence in this case should properly be viewed as not only conflicting in many respects, but as so substantially supportive of the trial court’s findings of fact and custody determination that, disregarding what our own initial determination might have been, we should not hold the trial court to be clearly erroneous in its studied determination.
While the length of the trial judge’s thirty-six page memorandum opinion containing his findings of fact is of no appellate significance, it is indicative of the careful analysis and scrutiny given to the evidentia-ry facts found by the trial court to which it correctly applied the pertinent law. The district court considered not only the facts recited in the majority opinion, to which it gave varying weight (as indicated by the trial court’s finding that the moral misconduct of Jenny to which the majority points was never in the presence of or to the knowledge of the children and simply did not affect in any way their best interests and welfare), but much more. This dissent is not enhanced by recitation of the remaining facts upon which the trial judge partially premised his determination, but fair examples are the numerous items of evidence upon which the trial judge concluded that the grandparents Donald and Jean deliberately thwarted and frustrated Jenny’s efforts at visitation and that they conspicuously failed to assure the children of their genetic mother’s love for them; the trial court apparently observing more perceptively the caveat of the Iowa Supreme Court in Bannister, cited by the majority, to the effect that a distressed parent:
“... should be encouraged to look for help with the children, from those who love them without the risk of thereby losing the custody of the children permanently.” 140 N.W.2d 152, 156. (Emph. added).
The trial court also considered the comparative ages of the parties competing for custody, and properly so in view of this court’s opinion in Jordana v. Corley, 220 N.W.2d 515 (N.D.1974). The district judge noted the disparity in age between the children and the grandparents and observed that adoption agencies are so concerned with the age of prospective adoptive parents so as to ensure a long, secure, active, flexible and stimulating relationship with the child, that the disparity between the grandparents and child in this case would prohibit adoptive permission. It should be noted that when these two children are 17 and 15 years of age, respectively, Donald will be 66, unquestionably a wonderful age to be. But, human experiences should suggest that a person of that age should not be burdened with the responsibility of two teenage children; particularly when their genetic mother is eagerly available to provide them with the necessary love, care, guidance and counseling so desperately needed by teenage children in a world of often conflicting and rapidly changing values.
The trial judge also carefully weighed each of the ten enumerated guidelines given to the courts by our Legislature in N.D. Cent. Code 14-09-06.2 to assist in resolution of child custody disputes and, on balance, determined that the best interests of the children dictate their custodial placement with Jenny. Those ten separate findings of fact alone would be sufficient to deter me from concluding under Rule 52(a) that the trial court’s decision on the ultimate question of the best custodial placement was clearly erroneous. As to observation on the “exceptional circumstances” which exist in this case, reasonable persons could just as *758readily conclude that those “exceptional circumstances” weigh more heavily in favor of placement of the children with Jenny, particularly considering that her right as the sole surviving genetic parent to keep her children is “paramount” — absent exceptional circumstances mandating removal — and her rights being of “constitutional dimension” and “superior to that of anyone else”, including the grandparents. Raymond v. Geving, 74 N.D. 142, 20 N.W.2d 335 (1945) and McGurren v. S. T., 241 N.W.2d 690 (N.D.1976). In Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980) Justice Vande Walle spoke for a unanimous court when he said:
“This court has recognized that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person.... Although the right of a parent to the custody of his/her child is not absolute, the courts are reluctant to remove a child from the parents’ custody unless it is necessary to prevent serious detriment to the welfare of the child.”
He continued by quoting Justice Sand in an earlier decision:
“ ‘... it is not reason enough to deprive parents of custody that their home is not the best or most modern that could be offered to the child, so long as the child does not suffer physical or moral harm, or lack of food or clothing. Poverty, lack of education or of culture alone are never justification enough for severing the ties that bind families together.’ ”
Next I fear that the majority unnecessarily assumes an adversary point of view when it suggests that the trial court mis-perceived the correct test to apply in custodial disputes. The majority states that Judge Garaas “focused on a parental fitness test which is an incorrect application of law.” Obviously, application of the parental fitness test solely would be incorrect today; however, I do not believe Judge Garaas applied that test. While the majority correctly quotes that part of the memorandum opinion relating to Donald and Jean’s futile efforts to prove Jenny an unfit mother, that is only an isolated portion of the lengthy memorandum opinion. It is quite apparent to me that the trial judge correctly applied the “best interests of the children” test and precisely followed this court’s instructions in its prior opinion in Mansukhani v. Pailing, 300 N.W.2d 847 (N.D.1980), cert. den., - U.S. -, 102 S.Ct. 98, 70 L.Ed.2d 88, as indicated by the following portions of the district court’s opinion:
“The ruling of the Court on appeal was that Plaintiff must have an evidentiary hearing to determine where the children should be dependent on what was in the best interest of the children. This Court was instructed to balance the rights of a biological parent with the best interests of the children.”
* * * * * *
“Without regard to the fact that the Plaintiff is the biological mother to the children, this Court finds that the best interest of the children and the best welfare of the children dictates that the children be returned to the Plaintiff.” (Emph. added).
# * * * * *
“This Court has found after listening and seeing the witnesses that the best interest of the children would be served by having them in custody of the Plaintiff without regard to the fact that she is the sole remaining biological parent.” (Emphasis by trial court).
* * * * * *
“The evidence shows that the best interests of the children are served by granting the petition for writ of habeas corpus and allowing custody of the children to be with the Plaintiff mother without regard as to her paramount right as a natural parent. However, bestowing on her the additional preference and rights to custody as a parent, this Court is overwhelmingly convinced that it can do nothing else in the best interests of the children. The children have lost their father by an accident in 1980. They do not deserve to lose their sole remaining parent, their mother, when the evidence shows that it *759is in their best interest to have a home with the Plaintiff, her husband and their two half-sisters.” (Emph. added).
The majority opinion stresses the psychological parent relationship which developed between the children and the grandparents. Such psychological bonding is the point pressed by the authors of Beyond the Best Interests of the Child, Goldstein, Freud, and Solnit [New York: The Free Press (1973)], a scholarly work previously given judicial credentials by members of this court at least as early as Jordana v. Corley, 220 N.W.2d 515 (N.D.1974). It should be noted that the authors of that work concede in a prefatory manner that, by virtue of their respective professorial specialties, their approach to and emphasis on the difficult question of child placement . . is exclusively on the child’s psychological needs” (p. 4), to the exclusion of other factors, even the mere physical well-being of the child. Other similarly sincere scholars might well conclude that the simple physical needs of a small baby (as was Allen when placed with Donald and Jean) such as feeding, bathing, diapering, bedding, and close physical affection may be equally as important as are the psychological aspects so crucial to healthy child growth and development. The trial court was well aware of the Pailings’ claims that they had become the psychological parents of the children, but seems to have been of the opinion that the grandparents deliberately, although in good intention, substituted themselves as the psychological parents of the children and effectively severed the attachment of the children to their natural mother. Judge Ga-raas was disturbed by the fact that on Allen’s birthday on August 1, 1980, a week after the death of his father, the grandparents did not even let the children know that their only remaining parent was coming to visit them, such failure of the grandparents resulting in that sad confrontation on that date as described by the majority opinion. However, Judge Garaas found that a subsequent overnight visit that same month:
“... was delightful to all concerned. The children were content and expressed a desire not to leave according to [Jenny]. Jennifer talked about ‘belonging’ there with her mother.”
The majority opinion places great reliance on the opinions of the expert witnesses which leads to my next fear that the majority may have unfairly characterized the trial court’s careful consideration and weighing of the expert testimony (which was its exclusive province to do) by stating that Judge Garaas essentially disregarded the evaluations and conclusions of the experts by a “summary dismissal” of their testimony. Certainly now that we are well into an era of division and specialization of knowledge, the courts should search out the aid and assistance of expertise in any given field, including the social sciences. However, in receiving the benefits of that expertise, the courts should not even allow the appearance that they might be pursuing a form of abdication of their duty and authority to render their own sound judgment, even though it may be buttressed by expert support. I cannot conclude that the trial court summarily rejected the expert testimony, but instead I am of the opinion that he carefully weighed the expert testimony, accepting some but rejecting most of it, as indicated by the following:
1. He concurred with the social worker’s home study report that Jenny and her second husband would provide Jennifer and Allen “with a secure and stable home and would give them the love and understanding they need plus parental guidance and supervision.”
2. As to the home study of the grandparents’ home, the trial court placed little weight on its conclusions because the social worker involved went beyond the court’s request and directions and included conclusions which the social worker was not only not qualified to reach but which were based exclusively on hearsay information.
3. He felt that Dr. Burger’s examination “was made hurriedly” for use by the grandparents in seeking temporary stay orders of the initial district judge’s decision on the petition for writ of habeas corpus subsequently reversed by this court. Judge Ga-*760raas felt Dr. Burger relied far too heavily on the unreliable expressions of children of the tender ages of four and six years and proceeded to a detailed analysis of Dr. Burger’s testimony and reports.
4. As to Dr. Hanlon, the trial judge found that he did not even know that Jenny had been effectively denied visitation rights for the year immediately preceding his examination of the children, which factor Dr. Hanlon admitted would affect his opinion had he known of it. The trial judge chose not to give much weight to this expert’s conclusions which he felt were based upon “dreams, wishes, ... or other such indirect and vague methods ....”
5. Similarly did the trial court reject Dr. Peterson’s testimony, finding that the conclusions reached by him were not only based upon insufficient factual information but that Dr. Peterson was “concerned with only mental health” over and above “the best interest of the child.”
As was the trial judge, I am not so willing to surrender to experts who have not yet labored in the rocky vineyard of courtroom child custody disputes.
Lastly, I deem it appropriate to comment upon the procedural vehicle chosen by Jenny to assert her claims. Apparently her attorneys felt that a petition for writ of habeas corpus in a child custody dispute would be used only in its earlier classic form to test rather summarily the legal authority of the grandparents to “detain” the children (and of course they had none whatsoever). That clearly was an erroneous assumption on the part of Jenny as indicated by this court’s prior opinion in this case and others. I suggest that it would have been better in the past and will be in the future for interested parties to proceed by motion in the divorce action to which Jenny and her deceased first husband were parties, with an appropriate substitution of a party for the deceased husband, the judgment in which is the only viable legal document determinative of the legal custody of the children, with the exception of this awkwardly structured proceeding.
To paraphrase a concurring opinion in Jordana v. Corley, supra, I hope the majority opinion is not erroneous at all, but I fear that it may be. For the sake of these two dear children, I hope that the fears and doubts which compel this dissent will be shown by future events to be unwarranted.