dissenting.
I join fully in the dissent of Judge Boslaugh herein. This is a habeas corpus action between the mother and the paternal grandmother and her husband. The care and custody of Lawrence William Marcus was; voluntarily granted by the mother prior to the time of both an interlocutory and final divorce decree in the State of California. Lawrence William Marcus has been in Nebraska and has been cared for in this state for a period of approximately 2% years since that time.
I feel it is necessary that we keep clearly in mind the precise rules of law that this court has laid down applicable to this situation. It is sometimes difficult to distinguish betwen the rules applicable in a habeas corpus action of this nature and the closely related rules that apply in a divorce proceeding or otherwise found in custody proceedings in this state. These questions were resolved in Reed v. Reed, 152 Neb. 819, 43 N. W. 2d 161. In that case, the mother, in a habeas corpus action against the father and paternal grandparents, urged the finality of a Kansas divorce decree finding her a fit and proper person for the custody of her child and awarding the custody to her. After holding under the facts in that case the divorce decree was not entitled to full faith and credit in a habeas corpus proceeding in this state and the fact alone that the custody of a minor child has been awarded in an action in another state does, not prevent inquiry into the question in a proper action by a court subsequently acquiring, jurisdiction of the parties in this state, this court stated as follows: “To *808give full faith and credit to the decree of the Wyandotte County district court in awarding the custody of the child to its mother in the case before us would be contrary to the laws and public policy of this state where the enforcement thereof is sought. There is a further reason that full faith and credit should not be given the Kansas decree awarding the custody of the child to its mother. The best interests of the child and its future welfare under all circumstances is the vital question in the case and is superior to> all other considerations where the question is raised upon a writ of habeas corpus.”
In the Reed case, and in numerous cases following and affirming its holding, this court has consistently held that after the court’s jurisdiction has been invoked by habeas corpus the child is a ward of the court and its welfare lies in the hands of the court. This power and responsibility is based upon the basic principle that the jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents, but has its origin in the protection that is due the incompetent or helpless. The historic jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the wishes of the parents, or the domicile of the child, but it arises out of the power that every state possesses as parens patriae to every child within its borders to determine its status and the custody that will best meet its needs and wants.
The Reed case has never been overruled and has been followed successively in its various pronouncements with reference to the fundamental jurisdiction and duties of the court in the following cases, the latest of which was in 1971. They are as follows: Copple v. Copple, 186 Neb. 696, 185 N. W. 2d 846; Hausman v. Shields’ 184 Neb. 88, 165 N. W. 2d 581; Green v. Green, 178 Neb. 207, 132 N. W. 2d 380; State ex rel. Cochrane v. Blanco, 177 Neb. 149, 128 N. W. 2d 615; Jones v. State, 175 Neb. 711, 123 N. W. 2d 633; Osterholt v. Osterholt, 173 Neb. *809683, 114 N. W. 2d 734; Walker v. Gehring, 172 Neb. 398, 109 N. W. 2d 724; State ex rel. Hamilton v. Boiler, 159 Neb. 458, 67 N. W. 2d 426; Lakey v. Gudgel, 158 Neb. 116, 62 N. W. 2d 525; Barnes v. Morash, 156 Neb. 721, 57 N. W. 2d 783; Lung v. Frandsen, 155 Neb. 255, 51 N. W. 2d 623; McNamee v. McNamee, 154 Neb. 212, 47 N. W. 2d 383.
Of course, it is true, that the district court and this court are required to give due regard, as one of the considerations involved, to the natural rights of a mother who is a fit and proper person to have the custody and care of a child of tender years. It is further true, and this court has constantly reaffirmed the proposition, that the custody of a child of tender years cannot be wrenched away from a parent on the basis: that somebody else can furnish a better home on a comparative financial basis. Nevertheless, we have adhered consistently to the rule, in a controversy for the custody of an infant of tender years in a habeas corpus proceeding, that the court will consider the interest of the child, and will make such order for its custody as will be best for its welfare, without reference to the mere wishes of the parties. Reed v. Reed, supra.
The majority opinion summarily reverses the discretion of the district court in this case, removes Lawrence William Marcus from a secure and loving home environment that he has been raised in for 2% years since his early infancy, and sends him back to California without the retention of any power to supervise, to control, or to review the needs and the welfare of this small boy. In order to do so, under our decisions, it becomes necessary, and that is implicit in the majority opinion, to hold that the trial judge, who saw and observed the witnesses, and observed their demeanor and conduct in the courtroom, committed an abuse of discretion in retaining jurisdiction of this child for the time being and permitting it to remain with the people who have given it the love, attention, and care of a fine home during the *810critical period when no one else was able or willing to do so.
The majority opinion is a persuasive and exhortatory appeal to a basic human emotion, the love and devotion of a mother for a child. However, an examination of the record in this case reveals significant facts directly relating to the welfare and best interest of Lawrence William, which indicate to me the good judgment of the district judge and demonstrate conclusively that he did not abuse his discretion in permitting the child to. continue in the fine home with the loving care he is now getting, and retaining the court’s jurisdiction to control and supervise the welfare of Lawrence William. Some of these facts are as follows: (1) Mary, the mother, is 20 years of age. What is her record of stability, responsibility, and morality since she reached the age of responsibility? (2) At the age of 16 she had her first child, illegitimate, bom out of wedlock. (3) She was expelled from high school for having in her possession a drug. (4) It was necessary for the authorities to. place her in a juvenile home not once, but twice; once for possession of drugs and once for running away from her home. (5) She lived with the father of Lawrence William, Tommy Marcus, before they were married and she has lived and resided with Richard Townsend, her present husband, during the period that she was married to Tommy Marcus, and for a long time before the final divorce decree on July 22, 1970. After knowing her present husband for a period of 1 month, she went to Mexico .and engaged in a marriage ceremony with him in violation of the provisions of the California interlocutory decree. (6) Her present husband is 28 years of age and has been previously married; his wife was granted the divorce and given the custody of their minor child; he never sees this child; and does not make any child support payments toward the support of his own child. All of this appears from the mother’s testimony herself. (7) Her first-born illegitimate child was only *811in her possession, care, custody, and control for a period of 6 months during the first 2% years of the child’s life. (8) Lawrence William was bom May 11, 1969; he has only been in her possession for a period of about 1 month since he was bom. (9) By her own admission, she has attempted to commit suicide and demonstrated to the trial court the marks on her wrists resulting from that experience. (10) The evidence strongly supports the finding that during the period of about 1 month after Lawrence Williams’ birth when she had possession of the child, he was not properly and adequately taken care of. She voluntarily relinquished the child to the Huffmans, and the evidence supports the finding that the child had a diaper rash, couldn’t keep any food in his stomach, was unstable, was nervous, and was hyperactive. (11) The evidence, including medical, conclusively establishes that Lawrence William is a well-cared for, stable child and has developed into such after being with the Huffmans for the past 2% years. It shows that from a highly nervous, “fussy,” and unstable child, he has developed into a happy, normal child with all of the care, love, and attention of a fine home. There is testimony in the record and before the trial judge that the child’s improvement since being with the Huffmans has been “fantastic” and that he is: content and is secure. This, testimony is corroborated by neighbors and friends of the Huffmans who have had an opportunity to observe the child during the period involved. The doctor’s testimony in this case is that a change in environment would disturb Lawrence William. His testimony is to the effect that at the time he first saw the child on August 5, 1970, after the Huff-mans brought him to O’Neill, he was. hyperactive, nervous, and with excessive motion in his arms and legs. Friends: and neighbors testified that since Lawrence has been with the Huffmans, he has become stable, is calm, and it appears to them that he is well-loved, well-nourished, and well-kept; and further that he was clean and *812seemed to respond favorably to Mrs. Huffman, his grandmother.
In light of these circumstances, the record in this case falls far short of showing an abuse of discretion by the trial court in making the determination that it did. This is not a case of wrenching a child from a close and normal attachment to its natural mother that has developed over a period of time and granting the custody to some stranger merely because he is able to give it better, more convenient, and more luxurious surroundings. The disposition of the trial court was not on a comparative financial or comfort basis. It was directly related to the well-being and the best interest of Lawrence William, and based upon sound judgment with reference to the future of the child and the precarious nature of propelling it back into an unknown and previously unstable environment with a new “father” who fails to even support his own child. I am firmly of the conviction that considering the primary question before us, and that is the best interests of the child, the mother here has failed to demonstrate, under all of the circumstances, the minimum fitness from the standpoint of the stability of a proper home for a child, from the standpoint of a moral background, the capacity to adequately and physically take care of the child and give it the close attention and care a child of Lawrence Williams’ age needs. In reaching these conclusions I am aided by the rule which we have unceasingly followed in this court, one particularly applicable in a child custody case, that a trial judge’s discretion should not be interfered with except in rare circumstances in a custody proceeding because the trial judge saw and heard the witnesses, and observed their demeanor and conduct when testifying. His judgment in these circumstances should be given great weight and his discretion should not be overturned unless it appears to this court, on trial de novo, that the disposition was arbitrary, *813capricious, unreasonable, and not supported by the evidence.
I am particularly fearful of the disposition and judgment in this case, because they make no recognition of the court’s duty to supervise the prospective care of Lawrence William. Lawrence William is a ward of the court and his welfare lies in the hands of the court. Reed v. Reed, supra. The testimony of Mary Marcus, the relator, is entirely uncorroborated, furnished the court without even the appearance or the deposition of her present husband, Richard Townsend. No provision is made to retain the district court’s power to order an independent investigation of her circumstances and home conditions in California through the welfare authorities, a device used by courts in order to properly exercise their jurisdiction in custody matters.
Spencer and Boslaugh, JJ., join in this dissent.