dissenting.
I respectfully dissent. I cannot agree with the majority that the default judgment granted to petitioners automatically entitles them to the issuance of a writ of habeas corpus for the child Jennifer under section 14.10(a) of the Family Code. Further, I believe the trial court was justified in denying the petitioners' request for a writ of habeas corpus and granting the Perezes’ request for temporary orders pending the outcome of the new suit for involuntary termination of parental rights and adoption filed October 26, 1983, as authorized by section 14.10(f) of the Family Code.1 By its decision, this Court adopts the policy that the finality of judgments should prevail over the policy, enunciated by the legislature in the Texas Family Code, that the best interest of the child should be paramount in any suit affecting the parent-child relationship. In this respect, the only hearing in which evidence was presented, and made part of the record before us, concerning the best interest of the child was the one held by Judge Williams on October 26, 1983. Unfortunately, the temporary orders predicated on this one and only hearing have been dissolved by this Court on the claim of a habeas corpus based on a default judgment.
In C v. C, 534 S.W.2d 359, 361 (Tex.Civ. App.—Dallas 1976, no writ) the court held that the best interest of children is the primary concern of the court and that ordinary procedural rules should not be strictly adhered to by the trial court where the best interest of children is concerned. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d); In the Interest of Herd, 537 S.W.2d 950, 952 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.); Brillhart v. Brillhart, 176 S.W.2d 229, 230 (Tex.Civ.App.—Amarillo 1943, writ ref’d w.o.m.).
The default judgment granted the petitioners resulted when the Perezes and their attorney failed to answer the bill of review filed by Almaraz and Guerrero. The default judgment reads “the Court considered Plaintiffs’ motion for judgment by default and took evidence on the relief requested by Plaintiffs in their original petition.” We have no record before us as to the evidence *927presented at the default judgment. But in light of the Supreme Court holding in In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980), I cannot believe the Supreme Court would apply the finality of judgment rule as a bar in this particular case. The Supreme Court held that a clear and convincing standard of proof was required in termination cases. The Court noted that “termination is a drastic remedy and is of such weight and gravity” that due process required a burden of proof greater than a preponderance of the evidence in involuntary termination cases. As Associate Justice Akins argued in Joiner v. Vasquez, 632 S.W.2d 755 (Tex.App.—Dallas 1981, writ ref’d n.r.e.), cert. denied, — U.S. —, 104 S.Ct. 422, 78 L.Ed.2d 357 (1983) (on motion for rehearing, Akins, J. dissenting):
In light of the Supreme Court’s strong expression with respect to the proof required in an involuntary termination case, I cannot believe that the Supreme Court would endorse application of the doctrine of res judicata to preclude a full hearing to determine the best interest of the children in a termination case, especially in a case such as this where no evidence to support the termination decree has ever been adduced.
632 S.W.2d at 764.
The same concerns expressed by the Dallas Court are also evident in this case. After the termination of parental rights of the respondent Almaraz, a bill of review was requested. Because the Perezes and their attorney did not attend the hearing, a default judgment was entered against them. In their attempt to remedy the situation, the Perezes filed a motion for new trial which was orally granted by the trial judge. On the mistaken belief that the orally granted motion for new trial was good, the Perezes proceeded to prepare for a full hearing on the termination of parental rights. The motion for new trial, never having been reduced to writing, was overruled by operation of law barring the Per-ezes from the one chance for a hearing where the best interests of the child Jennifer could finally be determined. Thus have procedural rules and a counsel remiss in his duty to his clients, prevented the Perezes from defending their right to possession of Jennifer as adoptive parents.
The purpose and intention of the amendments to section 14.10 of the Family Code was to clarify and modify some of the requirements and procedures for obtaining a writ of habeas corpus after an alleged child-snatching. The Legislature intended that the statute prevent any use of self-help by a parent who was not given lawful custody of the child. Solender, Family Law: Parent and Child, 32 SW.L.J. 141, 143 (1978). The amendments attempted to prevent children from being bounced back and forth between their divorcing parents. Once custody of a child had been determined, and a court order issued, parents would no longer be allowed to relitigate custody in a habeas corpus proceeding under section 14.10.
Securing stable homes and supportive families for children is a primary concern of the courts and legislature, and anything which unnecessarily undermines the validity of the adoptive procedure should be considered detrimental to the best interests of the children. Solender, Family Law: Parent and Child, 31 SW.L.J. 133, 151 (1977). This is obviously what Judge Williams had in mind when he denied the Almaraz and Guerrero request for a writ of habeas corpus based on the default judgment. The trial judge heard the evidence, knew that the Perezes had failed to appear at the July 8,1983, hearing that resulted in the default judgment, knew that they had requested and had been orally granted a new trial, and knew that the pending suit for termination of the Perezes’ right to Jennifer would soon be heard. So rather than shuttle the child again, he decided to leave the child with the adoptive parents and appointed the natural mother temporary possesso-ry conservator, maintaining the status quo while the parties awaited the termination hearing. Clearly Judge Williams took the Legislature at its word; that the main concern in any suit involving the parent-child relationship is the best interest of the child.
*928The case most factually similar to our present case is In the Interest of Stuart, 544 S.W.2d 821 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.). In Stuart, the natural father filed for a writ of habeas corpus seeking the return of his daughter after his release from prison. The father’s brother, the child’s uncle, had possession of the child without benefit of a court order for 5 years. In response to the natural father’s request for a writ of habeas corpus, the uncle (1) answered the writ of habeas corpus, (2) filed a petition to terminate the natural father’s parental rights, (3) filed for adoption, and (4) requested to be appointed managing conservator. The natural father filed a general denial to the uncle’s suit. The trial court denied the father’s petition for habeas corpus and appointed the uncle managing conservator. The father was granted visitation rights as temporary possessory conservator, pending further orders of the court. The order did not dispose of the petition for termination of parental rights and custody. The court in Stuart stated:
At the time of the hearing on the petition for a writ of habeas corpus there was pending a suit which would affect the parent-child relationship brought under sec. 11.01, et seq. of the Family Code. The custody of the child is presently under an order for temporary managing conservatorship issued out of that proceeding, as specifically authorized by sec. 11.11 of the Code. We believe such a proceeding is the type contemplated by sec. 14.10(f) of the Family Code.
544 S.W.2d at 823.
Clearly, under the record in Stuart as in our present case, the trial court was justified in its implied finding that the best interest of the child would be served by leaving the custody of the child with the uncle pending a hearing and determination of the issues of termination of appellant’s parental rights to the child and adoption. Id. at 824. The majority hold that because Judge Williams did not use the magic words “a serious immediate question concerning the welfare of the child,” the order cannot be upheld under section 14.10(c). Judge Williams’ order recites only “that it is in the best interest of the child.” Had the order tracked the language of 14.10(c) and given the evidence presented at the hearing, I have no doubt that the majority would have denied the writ of mandamus.
The Perezes are being made to suffer the loss of their adoptive child due to the irresponsibility on the part of their various lawyers. To permit the future of the child to be determined by the lack of diligence of one of the parties or their attorney would ignore the court’s primary responsibility to protect the child and make its decision based on the best interests of the child. C v. C, supra at 362; Baggett v. State, 541 S.W.2d 226 (Tex.Civ.App.—Tyler 1976, no writ). The trial judge realized this, and acted accordingly. I believe that the trial court was correct in denying petitioners request for a writ of habeas corpus pending the hearing on termination of parental rights. Therefore, I would deny the writ of mandamus.
. TEX.FAM.CODE ANN. § 14.10(f) (Vernon Supp.1984) reads:
The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this subtitle, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this Code.