The following opinion was filed June 28, 1955 :
Per Curiam(on motion for rehearing). The brief submitted in behalf of respondent, Mrs. Veda Stone, in support of the motion for rehearing, points out that the testimony of Franklin Edwards, Jr., was not taken at the hearing held upon the petition of his father in which the custody of said minor was at issue. Such brief further states that the boy is “sick at heart” over the decision made by this court directing that his custody be awarded to the father.
Inasmuch as the welfare of this boy is the paramount factor to be considered in any contest over his custody, we have concluded that in the interest of justice we should exercise our discretionary power under sec. 251.09, Stats., and remand the case for further proceedings so that the testimony of Franklin Edwards, Jr., may be taken, and a new determination made by the trial court after the taking of such additional testimony.
*56bFranklin Edwards, Jr., became twelve years of age on June 16, 1955... In the case of Jones v. State ex rel. Falligant (1933), 211 Wis. 9, 16, 247 N. W. 445, this court based its decision as to who should have the custody of a fourteen-year-old girl largely' upon the testimony of such child. In the instant case, if Franklin Edwards, Jr., does testify that he prefers to remain in the foster home where he has resided for some years rather than return to the custody of his father, such fact should not be deemed to be controlling on the issue of custody unless the testimony of the boy goes beyond this matter of personal preference and gives substantial reasons why it would be against his best interests to be compelled to reside with his father.
We recommend to the trial court that a competent and disinterested attorney be appointed guardian ad litem for Franklin Edwards, Jr., and that such guardian ad litem be allowed adequate opportunity to confer with the boy well in advance of the hearing at which his testimony is to be taken, and so that such guardian ad litem may make such further investigation as he deems advisable after such conference. If the guardian ad litem should request the taking of the testimony of witnesses other than Franklin Edwards, Jr., the guardian ad litem should be granted such privilege of calling additional witnesses.
The previous mandate of this court is vacated and the order appealed from is reversed and cause remanded for further proceedings in accordance with this opinion.