I respectfully dissent.
I
At bedrock is this proposition of law which controls our writ issuance: “[A] tribunal has jurisdiction to determine its own jurisdiction.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302 [109 P.2d 942, 132 A.L.R. 715].) And the appeal court does not interfere until the trial court has performed this threshold function. As the Supreme Court stated in Rescue Army v. Municipal Court (28 Cal.2d 460, 464 [171 P.2d 8]: “A court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance. It is necessary, therefore, to challenge the jurisdiction of the trial court in that court [italics in original], by demurrer, motion, plea or other objection of some kind, so that that court [italics in original] may prelim*869inarily decide the question whether it has jurisdiction to proceed. And unless a party can show that a lower tribunal, after first determining that it has jurisdiction, is proceeding to exercise it [italics in original], there is nothing for a higher court to prohibit. This obvious principle is one of the cornerstones of our system of lower and higher tribunals.” (Italics added.) (See also In re Marriage of Leonard (1981) 122 Cal. App.3d 443 [175 Cal.Rptr. 903]; Palm v. Superior Court (1979) 97 Cal.App.3d 456 [158 Cal.Rptr. 786].)
The first California case to examine this concept in the context of a trial court’s duties vis-á-vis the appeal court’s function, Abelleira v. District Court of Appeal, supra, 17 Cal.2d at page 302, held: When the trial court has merely taken the question of whether it has jurisdiction under consideration, there is no reason for appellate interference pending its decision. The Supreme Court explained the roots of this rule: “It has its origin mainly in the cases holding that a court has inherent power to inquire into jurisdiction of its own motion, regardless of whether the question is raised by the litigants. [Citations.] It rests also upon the theory that until the court determines that it has jurisdiction and does some act in consequence, there can be no injury to the party who denies its jurisdiction. [Citation.] It means only that the trial court or lower tribunal or body to which the question is submitted has such jurisdiction to make the first preliminary determination—not a final one; and no interference is permitted until it does decide the matter one way or the other. Until it acts to assume or refuse jurisdiction over the merits no one is entitled to complain. (Italics added.)
“But once the tribunal, judicial or administrative, has made this determination of the issue, and has acted to assume jurisdiction of the cause, the rule no longer has any meaning. The jurisdiction to determine jurisdiction has been fully exercised by a determination in favor of jurisdiction over the cause; the question is no longer of jurisdiction to determine, but of jurisdiction to act. And jurisdiction to act is always a subject of inquiry by a higher court.” (Id., at pp. 302-303.)
This distinction was emphasized in Rescue Army v. Municipal Court, supra, 28 Cal.2d 460, 464-465: “When, however, the trial court has heard and determined the jurisdictional challenge, and has decided in favor of its own jurisdiction, and then proceeds to act, that is, to try the cause on its merits, the situation is entirely different. It then may be properly claimed that a court without jurisdiction is purporting to exer*870rise it. [Italics in original.] At this stage, jurisdiction to determine jurisdiction has been exercised, and the higher courts will, in an appropriate case, restrain the lower court from acting in excess of jurisdiction [citations].” (Italics added.) (See also Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557 [219 P.2d 457]; Rich v. Superior Court (1916) 31 Cal.App. 689, 694 [161 P. 291]; Arroyo D. & W. Co. v. Superior Court (1891) 92 Cal. 47, 52 [28 P. 54]; Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 814 [31 Cal.Rptr. 316, 382 P.2d 356], and cases cited.) And in Sayegh v. Superior Court (1955) 44 Cal.2d 814, 815 [285 P.2d 267]: “Ordinarily, a reviewing court will not grant prohibition until an objection to jurisdiction has been made and overruled in the lower court, since it is assumed that any valid objection properly brought to the attention of that court will prevail, and the writ will, be unnecessary. (Baird v. Superior Court, 204 Cal. 408, 415 . ..; Havemeyer v. Superior Court, 84 Cal. 327, 406 ...; Hanrahan v. Superior Court, 81 Cal.App.2d 432, 434-435; see Rescue Army v. Municipal Court, 28 Cal.2d 460, 464 ...; [Noland v. Superior Court (1938) 26 Cal.App.2d 708 (80 P.2d 76); Shaffer v. Justice Court (1960) 185 Cal.App.2d 405, 408 (8 Cal.Rptr. 269)].)”
II
The wisdom of the foregoing rule shines forth crying for application to the fact matrix here. The record reflects:
1. The marriage of these parties was dissolved in final decree of dissolution in the superior court, San Diego, January 5, 1978.
2. By agreement (Sept. 1977) the parties had “joint legal custody” of Dawn, then seven and Sarah, then five years old, but the father had “physical custody” with “liberal rights of visitation” reserved to the mother.
3. The mother (in 1980), without consent of the father, took the children from the father’s home in Idaho.
4. On June 30, 1981, the mother pleaded no contest to the charge of child stealing in the San Diego Superior Court.
5. The mother (June 30, 1981) brought a petition in the superior court to modify the 1977 custody order.
*8716. Mr. Hafer responded in writing: “I consent to the following order: Reasonable visitation to Petitioner to occur in the presence of Respondent so as to avoid reoccurrence of child stealing.”
7. On July 7, 1981, the husband filed his memorandum of law in the superior court proceeding, contending the California courts “lack jurisdiction to consider issues of child custody in this case.”
8. A hearing was held in the superior court on that same day. The mother’s attorney objected to the filing of the memorandum “received this morning” and asked for opportunity to file opposition points and authorities. The parties admitted the children were in California.
An argument by counsel then followed expressing the legal contentions of the respective parties. Counsel for the mother argued (a) there was evidence of “mistreatment and abuse” of the children over a three-year period and made reference to dental problems and failure to provide needed medical care. The mother’s counsel also requested an interview with the children by the conciliation court counselor. The court, based on this preliminary discussion, observed “Mr. Hafer does not appear to wish to seek the services of the Idaho court—at least he has not done so as yet” and then concluded “I think in the best interests of the children this Court should assume jurisdiction at this point .... ” The court then ordered the parties and children to see the conciliation counselor.
9. A further hearing (the same day) followed at which the counselor recommended a “full custody evaluation” and the mother keep the children until the end of August and then return them to the father in order to start school in Idaho.
The counselor also reported the girls (now ages seven and ten) told her they wanted to live with their mother “because the father is mean to them,” uses switches, hairbrushes, hits them, punishes them by leaving them alone and sends them to bed for two to three hours.
The court then ordered a full term custody investigation and set the matter for hearing on October 30, 1981.
10. Mr. Hafer, in face of his written consent to the court’s exercise of jurisdiction, petitioned this court for writ of prohibition, objecting to the *872trial court’s exercise of jurisdiction, contending it had no lawful basis under the UCCJA.
This court (the undersigned not participating) on August 21, 1981, in the context of yet unresolved factual issues presented by Mr. Hafer’s challenge to jurisdiction, issued its order staying all proceedings and ordering the children returned to the father’s custody “before August 24, 1981.”
Ill
At the epicenter of this melee of battling lawyers and angry parents are two small children who are being injured by this ongoing tug-of-war. Both children have serious health needs, both are being battered emotionally by the blind, the ungenerous, the unwise who in the name of love would destroy them. This is not the case for a California court to wash its hands of the whole unhappy affair.
Counsel for the mother has repeatedly made charges—but never in the proper forum—of child abuse. There has been no hearing on the preliminary issue of jurisdiction to hear the custody motion. The question for the purpose of jurisdiction is whether an emergency exists. If the children are being harmed in a medical sense by the father’s lack of care, it should be so found by a superior court as a preliminary fact to assuming jurisdiction. A psychologist has represented by letter the children are being harmed in an emotional sense by a harsh cold father; these facts need be placed before the trial court in a proper hearing to determine jurisdiction.
If the father is cruel, so harsh in the treatment of the children as to cause them to express their desire not to live with him, this need be proven as fact. If such be the facts, then there exists express legislative authority for the superior court, San Diego, to accept jurisdiction and hear the custody petition.
Also, counsel for the mother has tendered conclusions and some few facts referent to the variety of substantial contacts these children have with San Diego, California. Again, these matters were argued at the July 7 hearing but never proffered in proper evidentiary form before a trier of fact.
*873In short, the basic evil with the processes which have thus far taken place—both at the trial court level and in the majority opinion—is that there has been no recognition of the absolute need for a factual hearing to determine the preliminary question , of whether there is an emergency giving jurisdiction under UCCJA. The best interest of the children demand such a factual exploration in a proper jurisdictional hearing to determine whether emergency circumstances warrant an exercise of jurisdiction.
In face of the paucity of hard evidence before the trial judge, it must be conceded there is now no substantial evidence to support a finding of jurisdiction under the UCCJA. However, a wrong is permitted, where a host of reasonable suspicions of harm to the children have been raised. The trial judge had lawyer representations plus some hard facts from the counselor, who consulted at length with the children, which gave rise to a rational suspicion that the children were being neglected. This counselor, a disinterested, skilled person, requested a full custody investigation. This court, on these facts should remand the matter for an appropriate jurisdictional hearing. If it be found there is no emergency, no abuse, or maltreatment of the children, no basis for jurisdiction under the UCCJA exists; then these children should be returned to the father forthwith.
IV
My brethren also find the mother guilty of unclean hands. Whether her hands are “clean” depends upon the answer to this primary jurisdictional question: Is Mr. Hafer as bad a parent as is contended? The fact of the removal of a child without consent of the custodial parent does not ipso facto create unclean hands and lack of jurisdiction to determine custody. In child custody proceedings, the question of clean hands of the parents should be subordinated to the court’s primary concern— the child’s best interest. (Bosse v. Superior Court (1979) 89 Cal.App.3d 440, 444-445 [152 Cal.Rptr. 665]; In re Marriage of Leonard, supra, 122 Cal.App.3d 443, 466-468; see also Woodhouse v. District Court, etc. (1978) 196 Colo. 558 [587 P.2d 1199, 1200]; In re Marriage of Verbin (1979) 92 Wn.2d 171 [595 P.2d 905, 909, 910], Williams v. Zacher (1978) 35 Ore.App. 129 [581 P.2d 91, 96], Nehra v. Uhlar (1977) 43 N.Y.2d 242 [401 N.Y.S.2d 168, 372 N.E.2d 4, 8-9].) The Supreme Court of Washington reasoned: “We note, however, that even under section 8 of the Uniform Act [California Civ. Code, § 5157] our court would not have been required to decline jurisdiction. Section 8 *874contemplates consideration of all relevant facts and circumstances, and the exercise of discretion by the trial court to determine what is ‘just and proper under the circumstances.’ In this case respondent justifiably feared for the emotional well-being of her children as well as her own physical and emotional safety, if they stayed in the Maryland home. She fled to the comfort of her own parents and siblings, who were also able to extend security and love to her children. The trial court, in the exercise of its discretion, could well have found her conduct was not wrongful and did not require it to decline jurisdiction under the Uniform Act.” (In re Marriage of Verbin, supra, 595 P.2d at pp. 909-910.)
The majority opinion suggests we confront purely a technical question of jurisdiction and therefore the court cannot look to the best interest of the children. Such concept is contrary to the express language of Civil Code section 5152, subdivision (l)(b), section 5156, subdivision (3), and to the patent inference to be drawn from the express language of section 5152, subdivision (l)(c)(ii), and contrary to scholarly authority and case law that teach us it is the best interest of the child which is paramount. (See Bodenheimer, Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws (1969) 22 Vand.L.Rev. 1207, 1221; Clark v. Superior Court (1977) 73 Cal.App.3d 298, 308-309 [140 Cal.Rptr. 709]; In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 267 [154 Cal.Rptr. 80].)
In a most recent case, the balancing approach was used in determining whether to decline jurisdiction after mutual “child-stealing” incidents. (In re Marriage of Leonard, supra, 122 Cal.App.3d 443.) Under Leonard, “unclean hands” did not mandate a refusal of jurisdiction. The Leonard court refused to apply sanctions because it would not be in the best interest of the child. (Id., at pp. 464-465.) It must be conceded that both the statute and the case law recognize that the imperative to discourage abduction must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child. Otherwise “[t]he dignity of the several courts would be preserved, but the welfare of the children would be destroyed.” (Matter of Lang v. Lang (1959) 9 App.Div.2d 401, 405 [193 N.Y.S.2d 763, 767], affd. 7 N.Y.2d 1029 [200 N.Y.S.2d 71, 166 N.E.2d 861].)
This case involves a collision of legal principles as well as the intransigence of the would-be custodians of these two hapless children, innocent subjects of a conflict they neither want nor can ever understand. *875The guiding principle of the child’s best interest is never easily applied once the parents themselves, as has happened in this case, have succeeded in creating the disruption of shifting custody. The court can only, as best it can, reduce the irreparable harm to a minimum.
The majority opinion effectively prevents the trial court from performing its mandated function of holding the necessary fact finding hearing to determine the validity—or invalidity—of the mother’s claim to jurisdiction under the emergency rule (Civ. Code, § 5152, subd. (l)(c)(ii)), the “significant connection” rule (Civ. Code, § 5152, subd. (l)(b)), or as the decree state1 and the factual issues tendered in opposition by the father; inconvenient forum and reprehensible conduct by the mother.
We confront here a charge of child abuse, undocumented but of sufficient prima facie weight to cause a most capable and sensitive trial judge—in face of admitted child abduction—to continue the children in the custody of the mother. Our concern for what must be the “paramount” issue in any child custody case—the best interest of the child— requires equal insight and concern. This matter should be remanded with direction to the trial court to determine the preliminary jurisdictional fact questions tendered.
Although the “decree state” does not have exclusive jurisdiction to modify its decree as long as one parent continues to reside there and the state has not declined jurisdiction, there is a “preference” for the decree state. (See In re Marriage of Leonard, supra, 122 Cal.App.3d 443; Commissioners’ Note to U.C.C.J.A., § 14 (Civ. Code, § 5163).)