(dissenting),
I respectfully dissent from the majority opinion.
This is an original proceeding brought by the mother, Marguerite R. Winkelman, against a Circuit Judge before the Supreme Court of this state. In circuit court there is pending the civil ease of Winkelman v. Winkelman, where the mother seeks to restrain the circuit court in Lawrence County from exercising jurisdiction over any further proceedings in this custody matter. The Circuit Judge answered herein without benefit of counsel. On his own behalf the Circuit Judge made a full disclosure of his actions and the reasons for denying the mother’s motion to dismiss the order to show cause to modify the decree of divorce.
I base my dissent, in part, on the following additional facts that the majority opinion did not address, which in my estimation bear significantly on the determination of this case. It is important to bear in mind that the father went to the State of California and took custody of his daughter not as a “child snatcher” but as a father heeding the cries of an anguished child who contacted him professing that her mother was generally abusing her. The father received a long distance call from Karen wherein Karen stated that she desired to come to South Dakota to live with her father and brother. During this conversation, the mother was allegedly screaming and yelling in the background.
The father and son both signed affidavits that Karen was subjected to continual screaming and yelling by the mother, and that Karen was highly upset and nervous due to unprovoked fits of anger directed at her by the mother. Norman Winkelman, age seventeen, stated that the mother was very emotionally unstable. The father swore under oath that Karen had lost her eyebrows due to a nervous condition, diagnosed by a doctor as allegedly caused by Karen’s home environment. Karen has vol*902unteered that she sorely missed her father and brother, with both of whom she has a close relationship. Karen maintains that her mother does not prepare meals regularly, refuses to keep the California home neat and clean, and does not provide her with proper medical attention. She maintains, as does the father, that the father’s rights of visitation have been denied. She protests her general unhappiness and distress, and ultimately sought the help of her father in her plight. Norman Winkelman swore under oath that he left his mother’s care in California because he could no longer bear living under such conditions.
The mother now desires to have our sister state of California decide the custody issue, maintaining that under the Uniform Child Custody Jurisdiction Act enacted in South Dakota in 1978, California is given jurisdiction under the circumstances of this case. The Circuit Judge denied the motion to dismiss, holding that South Dakota had continuing jurisdiction and South Dakota, not California, was the more convenient forum. All custody decisions involving these two minor children have been heard in Lawrence County, South Dakota. If South Dakota exercises jurisdiction in this case, any aggrieved party would have a plain, speedy, adequate remedy at law to appeal to this court.
The issues presented are: (1) Whether South Dakota has jurisdiction to determine change in custody of Karen Winkelman under the Uniform Child Custody Jurisdiction Act; and (2) if South Dakota does retain jurisdiction, must South Dakota decline exercising it pursuant to SDCL 26-5-22 and SDCL 26-5-23 on the basis that California is a more convenient forum. I would hold that South Dakota does have jurisdiction in this child custody dispute and that South Dakota, not California, is the more convenient forum.
I agree with the majority opinion only in its finding that South Dakota does have jurisdiction under SDCL 26 5 7. In addition, I would hold that South Dakota has jurisdiction pursuant to SDCL 26-5-8, which the majority opinion declined to address, mentioning it only in a footnote. SDCL 26-5 -8 provides:
A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent, (emphasis supplied)
This child’s emergency situation, which necessitated her protection at the time that her father answered her cry, is the most critical aspect of this entire case. There is an abundance of evidence, albeit by affidavit, that indicates that there was an emergency situation created by the mother’s abuse towards this child. It was for this reason that the child anguished and suffered and ultimately called the father for help. He responded in a humane manner and took what he considered to be a proper course of conduct for the best interest of his child. I am not so concerned with the mother’s rights or the father’s rights as I am concerned with the best interests of this young girl.
I part company with the majority opinion which states that: “The circuit court in Lawrence County must therefore decline to exercise its jurisdiction.” The majority opinion cites SDCL 26-5-22 for its authority. The statute expresses:
A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum, (emphasis supplied)
The Circuit Judge in this case found not only that South Dakota had jurisdiction but further found that South Dakota was not an inconvenient forum to make a custody determination. Furthermore, the Circuit Judge was not obliged as the majority opinion suggests to decline its jurisdiction.
*903SDCL 26-5-23 recites the various factors that the court shall consider, if it is in the interest of a child that another state assume jurisdiction. Then, oddly enough, the statute expresses that for this purpose, the court may take into account the following factors, including:
(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate.
In this regard, it must be remembered that these four factors are not exclusive. Furthermore, I disagree that if any one of these factors come into play the judge must decline jurisdiction. A judge has the discretion to decline jurisdiction if the circumstances so dictate that the best interest of the child could be better served in another jurisdiction. The best interest of the child must always be paramount. The majority agreed in theory with this position when it stated: “It must be remembered that the child’s interest is paramount to the mere interest or convenience of the feuding parties in a determination of child custody.” Yet, the majority opinion bases its decision that California is the more convenient forum because Karen has lived there for approximately five years. As a result, it is assumed that substantial evidence concerning Karen’s present or future care is more readily available in California. I would like to point out that each and every day that this child was in the State of California, it was with the blessing of an order of a South Dakota court.
I maintain that this family, consisting of the father, brother and sister, has a closer connection with the State of South Dakota than the State of California. She is enrolled in South Dakota’s schools and has South Dakota friends. She has an excellent relationship with her father and her brother. Her father has sought out medical attention and care for her. One of Karen’s chief complaints is that her mother does not give her proper medical attention. There is also substantial evidence in this state concerning the child’s present or future care, protection, training and personal relationships. The information concerning Karen Winkelman’s best interests is fair more prevalent in the State of South Dakota than it is in the State of California. In making its custody determination, a South Dakota court could procure any additional evidence located in California that it may require through the use of the procedural devices contained in SDCL 26-5-34 through SDCL 26-5-40.
The majority opinion does not concern itself with the humanities of the case. Karen, nearly thirteen years old, is of a sufficient age to form an intelligent preference. Karen’s health, peace of mind, and living preference take a backseat to the court’s theory of a convenient forum. The Uniform Child Custody Jurisdiction Act’s purpose is to insure that the best interests of the child prevail; such interests should not be overridden in a jurisdictional battle. Karen Winkelman’s best interests have been forsaken in legalism. It is for this reason that I dissent.