I dissent.
I. The first problem in a contested adoption is that of statutory construction. Here the majority reaches the conclusion that consent of the noncustodial parent is not necessary. 1 agree with the result of that facet of the case but do so because I suggest that the noncustodial parent should rarely, if ever, have an absolute right to veto a proposed adoption. See comment, Consent in Adoption in Iowa, 33 Iowa Law Review, pages 678, 685: “The power of an absolute veto of an adoption petition by a parent should be recognized only under extraordinary circumstances, for to allow such a power in many cases might prevent the court from providing for the best interests of the child. Problems arising from divorce and family settlements cannot be solved by iron-clad rules of law, because one party is often motivated only by the desire to injure the other party. An absolute veto might be a means by which a vengeful parent could obstruct a normal family readjustment. Where the court is given broad general powers to provide for the best interests of the child, this acute problem is avoided.”
II. The article referred to above starts with this observation: “Since an adoption proceeding affects the numerous, and often opposing, interests of (1) the child in question, (2) the child’s natural parents, (3) the adoptive parents, (4) the community in which the child is domiciled, and (5) the community in which it is proposed that the child be domiciled, it seems not only desirable but necessary that consideration be given to all of these interests, both singly and cumulatively, before final disposition of the adoption proceeding.”
In prior adoption cases we have given little recognition to any factor other than presence or absence of power to consent and, at times, what is to the best interest of the child. In this way adoption rules have been closely tied to the rules used in child custody cases. Yet they are not the same. The 33 Iowa Law Review comment succinctly covers that matter at page 681 as follows:
“Whereas an order awarding custody is always subject to review and possible change, adoption effectuates a permanent change of status. This factor alone necessitates that a proceeding *1290in adoption should be approached with the utmost caution. The creation of an artificial family by adoption should be a final alignment of the various interests involved, eliminating the necessity for further action. The effect of the decisions in Iowa has been to disregard the distinctions between custody and adoption by treating the award of custody in the divorce action as the basis for adoption, making custody practically absolute and irrevocable. To treat custody as an absolute right is to proceed on what Professor Sayre has labelled the ‘ “Property” theory of custody (in the sense that custody is regarded as a fixed and complete body of rights and duties to be transferred like ownership of a hog ...).’■ He concludes that ‘The transfer of custody in divorce cases as in other cases should not irrevocably take all the rights and duties from the parent . . .’ Custody being subject to rehearing at anytime, it is essentially an error to base the permanent relationship of adoption on the temporary arrangement of custody alone.' Furthermore, the factors governing the award of custody may differ from those involved in a proceeding for adoption. Custody is normally based solely on consideration of the ‘best interests of the child.’ As has already been pointed out, satisfactory adoption proceedings must be based on a number of often-conflicting interests, in which the immediate ‘best interests of the child,’ while of great importance, are not the sole consideration. In many instances, the award of custody to one parent is not based on a judicial comparison of the past parental records of the husband and wife, as custody based on such a determination would not necessarily promote the best interests of the child.”
A- review of some of our more recent consent cases indicates the tenuous grounds on which adoption eases have been decided where presence or absence of necessity for consent was considered the controlling factor; ' '
In Rubendall v. Bisterfelt (1940), 227 Iowa 1388, 1391, 291 N.W-. 401, this court'observed: “No extended consideration of the adoptive and custodial rights of parents is here necessary. It may be noted that although these rights are regarded as being separate and distinct they are closely interrelated and at times appear to blend into each other. However, the issue in this case *1291was limited to the legality of the adoption and the conclusions reached should not be construed as modifying the custodial or any other provisions of the divorce decree.”
In that case an adoption was accomplished without the consent of the father who had been given visitation rights and ordered to pay $10 per month by the terms of the prior divorce decree. The consenting mother had been given the custody and control of the child in the divorce decree. Under this statutory interpretation we did not reach > the important question in child custody cases; i.e., the best interest of the child. It simply held that consent was a sine qua non to adoption, and, the consent being withheld, the adoption was void.
In re Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742, also approached the same type case as a statutory interpretation problem but to a different result. The distinction made was that the husband was not ordered to support the children and the mother was given “absolute care, custody and control of the children”, and no right of visitation was reserved. As the dissent noted, the court ignored the fact that the father’s interest in real estate had been appropriated to support the children and that the father was in a mental health institution at the time of the divorce. The best interest of the child standard was never reached, the matter was returned to the trial court for determination as to whether an adoption should be granted.
In re Adoption of Karns, 236 Iowa 932, 20 N.W.2d 474, relied on the Alley case and approved an adoption consented to by the mother without notice to or consent by the father. In that case the child was born after the divorce, the father was in the service but got an emergency furlough to return to offer to help when he found that his former wife was pregnant. He offered an allotment. All help was refused and the allotment checks were returned. The court concluded that notice to or consent of the father was unnecessary under the statute and bolstered the opinion by recitation of the good home the adoptive grandparents were providing plus the statement that welfare of the child is ordinarily a controlling consideration in cases of this kind. For this additional pronouncement (in light of the cases previously discussed) the court cites Lancey v. Shelley, *1292232 Iowa 178, 2 N.W.2d 781, and Paulson v. Windelow, 236 Iowa 1011, 20 N.W.2d 470, both Habeas Corpus-Child Custody Cases. The American Jurisprudence citation is also taken from a section on Parent and Child entitled, Principles Governing Judicial Award of Custody. Thus statutory interpretation was not the sole grounds upon which this court relied and identification of adoption with child custody was recognized. As in the Alley ease, the fact that the father was severely handicapped by events beyond his control was ignored.
But In re Adoption of Chinn, 238 Iowa 4, 25 N.W.2d 735, reached the conclusion that where one spouse received the “custody of the minor child” and no support is ordered, but visitation rights are provided, the consent of the other non-custody spouse is unnecessary to adoption. “The rights given the father to visit the child and to take her to his home for one week in each three months did not give him the care of the child within the meaning of the statute.” Nothing is said about the “best interest” rule, the case was remanded for hearing on the adoption.
In re Adoption of Perkins, 242 Iowa 1374, 1379, 49 N.W.2d 248, uses the “best interest” rule, albeit, it refuses adoption. There the father of two boys had stopped making support payments as provided in the decree by reason of the wife’s remarriage. The court said:
“The record shows that one of the children involved is now thirteen years of age, the other approximately ten. Both are-boys. There is some evidence relative to drinking by all three adult parties concerned in this case. The divorce decree gave the custody to the mother with the father having rights of visitation. The question which we must determine at this point is whether it will be for the best interest of these boys if the adoption be permitted, in which case they will certainly be denied all association with their father; or whether the disadvantages of such a course outweigh the advantages and the adoption should be denied. We are not at this juncture concerned with whether the consent of the father is required; nor, as both the trial court and the appellee seem to think, with a question of custody as between the mother and the father. Admitting, for the purpose *1293of argument, that the consent of the father is not essential, yet we are still confronted with the problem of what is for the best interest of the children. We have concluded that the welfare of the boys here involved will be best served if the adoption is denied.”
We also said at page 1380: “[T]he right of visitation in itself is not enough to require the refusal of a petition for adoption, yet we think that the fact that such right will be eliminated by an adoption decree is a proper consideration when we are approaching the problem from the standpoint of the welfare of the children.” There were dissents to several of the foregoing eases but this case drew a special concurrence and two dissents.
The most recent case on this subject is Burrell v. Burrell, 256 Iowa 490, 127 N.W.2d 78. There the noneustody father stopped child support payment to the mother by agreement. Thereafter the mother’s second husband petitioned for adoption. We held that the agreement was not permanent, that the trial court properly ordered the payments started anew and gave the father the right to veto the adoption. Again we said that we need not reach the arguments re the child’s welfare. We there recognized a rule that is too often brushed aside in these cases. “In our recent case of Willey v. Willey, 253 Iowa 1294, 1302, 115 N.W.2d 833, it is said: ‘The rule is well established in all jurisdictions that the right of access to one’s child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child. Tn the absence of extraordinary circumstances a parent should not be denied the right of visitation. It is a right which, unless specifically denied by the court, can be enforced by right of habeas corpus.’ ”
Thus it would appear we have evolved to the position that if material contribution is being made the contributing noneustody parent has a right of veto. If no contribution is found that satisfies this court the custody parent is practically given carte Manche to arrange an adoption. As noted by Judge Harvey Uhlenhopp in his article Adoption in Iowa, 40 Iowa Law Review, 228, 245: “In the actual contests the question is usually whether the parent out of. custody is ‘materially providing’ for the child. Refined distinctions have developed on this point. *1294The trend here is away from the veto, although some judges remonstrate bitterly. The decisions constitute tacit recognition of the present-day breakdown in family ties.” One can only add that “refined distinctions” are singularly inappropriate in this field of law and human relations, and that the struggle should be to preserve what is left of family ties.
III. The public and the parents do have some rights that should be recognized and protected. It is not right to brush aside these rights with the cavalier statement that recognition of them is an “exercise of dubious Mendelism, labeled ‘natural right’ ”. 1 Family Law Quarterly 3, 8. Nor is it proper to completely ignore the public policy of this state as announced by the legislature. Iowa Code, 1966, provides: “633.3(19) Guardian— the person appointed by the court to have the custody of the person of the ward under the provisions of this Code.” and “633.559 Preference as to appointment. The parents of a minor, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian. * * Here, it seems to me, we give that statute something less than lip service.
Further it is submitted that the tenuous distinctions set up by our “consent” eases do not approach evenhanded justice. To say that a father has veto power because he was awarded visitation rights and ordered to pay $10 a month child support but a mother cannot preserve her visitation rights because she was not ordered to pay toward the child support, is to clearly discriminate. We know that the primary breadwinner is usually the man. In the comparatively rare case when the man gets custody the' woman is seldom ordered to contribute to support. Yet we consciously set up the situation where the man, if he complies with the decree, (however innocuous the financial burden) is protected with a veto power but the woman, even though she complies with the decree (and evidences her interest and love by visits to the children) can summarily be stripped of the few rights left and also of all hope for the future. Should payment of the princely sum of $10 per month as in Rubendall v. Bisterfelt, supra, make this big a difference ? If a man keeps up the payment but never visits the children, is he in a better position than the woman who eannot pay but frequently visits? *1295He is by our standards. Is $10 a month (or $100 a month) more important than demonstrated love and affection? It is by our standards.
In answer to this it might be said that the mother usually gets custody of the child and the law recognizes that she is usually best able to care for the child. Andreesen v. Andreesen, 252 Iowa 1152, 110 N.W.2d 275; Patzner v. Patzner, 250 Iowa 155, 93 N.W.2d 55. Thus ordinarily the mother is denied custody only when she is unfit at the time of divorce. Patzner v. Patzner, supra. These observations have some validity. Yet we often have situations where the mother’s unfitness at time of divorce is beyond her control due to youth, mental instability, illness, or other factors. When such factors have been removed, the mother has been able to regain custody in specific cases. McKay v. McKay, 253 Iowa 1047, 115 N.W.2d 151; Willey v. Willey, 253 Iowa 1294, 115 N.W.2d 833; Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 121 N.W.2d 216; Wood v. Wood, 220 Iowa 441, 262 N.W. 773. There are a substantial number of cases where the mother sought and obtained custody at a later date when the cause of her unfitness had been removed. In nearly every one of the child custody cases where the mother was denied custody her right to visitation was carefully preserved. See Willey v. Willey and Andreesen v. Andreesen, both supra; Alingh v. Alingh, 259 Iowa 219, 144 N.W.2d 134. But if there has been a completed adoption no right to visitation is allowed. Watt v. Dunn, 236 Iowa 67, 17 N.W.2d 811.
Adoption forecloses the right to seek custody, the right to visitation, the right to show rehabilitation, the right to be interested in natural children. It effectively divorces parent from child. As to the mother this will usually occur simply because she is not contributing money to the children’s support. As observed in the article Adoption in Iowa, supra: “Taking away the veto for lack of child support following the divorce decree is not the complete answer either. A mother out of custody may barely be able to support herself; and unemployment or disability may make support payments impossible.”
IY. This type of discriminatory result goes to the very heart of the difference between child custody and adoption prob*1296lems. One strips the parents of one facet of parenthood; the other strips the parents of all rights in relation to the child. The latter action should require a much stronger showing that the best interest of the child compels such action (as against other competing legitimate considerations) before adoption is ordered over the protest of the natural parent. See also 40 Iowa Law Review, 228, 244, Footnote 75: “Adoption cases continually evidence the influence of doctrine from custody eases. Yet adoption achieves something much more drastic. See Jackson v. Russell, 342 Ill. App. 637, 639, 97 N.E.2d 584, 585 (1951).”
As noted at the beginning of this dissent, noncustody parents should rarely, if ever, have a veto power in adoption eases, but no adoption should be granted over the objection of non-custody parent unless the welfare of the child urgently requires such action and the evidence convincingly shows such to be the case, or unless there has been abandonment, waiver or forfeiture (see Rubendall v. Bisterfe.lt, supra), or judicial determination of unfitness, as set forth in Code, 1966, section 600.3.
In the instant case the mother was 15 when she was married and 18 when the divorce occurred. Everyone seems to agree that at that time she was in no position to rear the children or support them. But does this mean she should be deprived of all rights in this summary fashion? There is no evidence that she has forfeited her rights or waived them. She is not shown to be morally unfit or economically unable to seek custody, much less preserve her parental rights of visitation. Nor is it shown that custody alone, without adoption, will not be to the best interest of these two children.
There was no problem at time of trial of long continued de facto custody in the prospective adoptive parents. Petitioners only had the children one month before starting adoption proceedings and four months before actual trial. In that connection the adoptive father’s statement that the children called him “Dad”, his wife “Mother”, and their father “Uncle” does not carry the usual weight.
It is not suggested that custody rights should be here determined. We do not have the record for it. But adoption should not be approved in such fashion as to strip a parent who, on the *1297record is innocent of wrongdoing, from all parental rights simply because the couple having de facto custody insist on adoption.
The result here is additionally unfair because the father whose parental burden has been carried by his mother will still retain his family contacts with the children while the mother is effectively locked out of the family circle.
Custody problems in this ease should be left to the divorce court where the matter is currently being litigated and those problems should be separately determined. I would reverse.
Stuart and Mason, JJ., join in this dissent.