¶1dissenting.
¶2We respectfully dissent from the holding of the majority of the court in this case. The opinion of the court states: “When the superior right of the father has been forfeited, the natural right of the father to have the custody of his minor child must give way to the best interests of the child … We submit that the statement quoted is an accurate summarization of the holding of the court. We do not agree that it is a correct statement of the law. We believe that parental rights in child custody proceedings are preferential, not absolute; and that the rights, desires, and wishes of parents should be considered and respected in such proceedings except where they conflict with the welfare of the children involved. In most cases the best interests of the child require that its custody be awarded to its parent. The difficulty arises when the best interests of the child require that its custody be awarded to someone other than its parent.
¶3“Wherever a controversy arises between different claimants to the custody of a child, the probable welfare of the child is the controlling consideration to which all questions of superior legal rights are entirely subordinated.” 27 Am. Jur., Infants, § 108, p. 829. “The court, in passing upon the writ in a case involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is in no case bound to deliver a child into the *167custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration.” 25 Am. Jur., Habeas Corpus, § 80, p. 204.
¶4In an early case, Sturtevant v. State ex rel. Havens, 15 Neb. 459, 19 N. W. 617, 48 Am. R. 349, this court held that in a controversy for the custody of a child the order of the court should be made with a single reference to the best interests of the child. This court stated: “Were the question of the right of the father the only question to be considered, we should, perhaps, coincide with the conclusions of law as stated by the district court. It is true this legal right was at one time, in the early history of our jurisprudence, fully recognized both by the courts of England and of this country; and it is, in part, made the law of this state by section 6, chapter 34 of the Compiled Statutes, which provides that, ‘The father of the minor, if living, and in case of his decease, the mother, while she remains unmarried, being themselves respectively competent to transact their own business, and not otherwise unsuitable, shall be entitled to the custody of the person of the minor and to care for his education.’ … It is true that this section is declarative of the law in its general sense, but we cannot agree with the defendant’s counsel and decide the cause upon the rule there laid down, unaided by recent judicial decisions or the circumstances of the case. But rather, taking our statute as a general guide, we will look to the particular necessities of the case and give our special attention to the best interests of the child about whom this unfortunate controversy has arisen. … From a careful examination of the authorities at our command we think the prevailing rule in this country may be briefly stated *168to be, that in controversies similar to this, especially where the infant is of the tender age of the one contended for, the court will consider only the best interest of the child, and make such order for its custody as will be for its welfare, without any reference to the wishes of the parties.”
¶5The Sturtevant case was followed for many years. In recent years the court has qualified the rule of the Sturtevant case by stating that custody is to be determined by the best interests of the child “with due regard for the superior rights of fit, proper, and suitable parents.” Apparently this statement of the rule had its origin in a supplemental opinion in Gorsuch v. Gorsuch, 143 Neb. 578, 11 N. W. 2d 456. See, also, Lakey v. Gudgel, 158 Neb. 116, 62 N. W. 2d 525, in which the court announced that Kaufmann v. Kaufmann, 140 Neb. 299, 299 N. W. 617, was overruled to the extent that it was in conflict.
¶6In the case at bar the court now holds that a parent has a superior right to custody and that the best interests of the child shall not be considered unless the right of the parent has been forfeited. “Due regard” has become “absolute right” and the right of the parent is the controlling and mandatory consideration, unless the court finds affirmatively that the superior right has been forfeited. The judicial point of origin of “the best interests of the child” is only reached after the elimination, by forfeiture, of the absolute right to have the custody of the child. We submit that judicial eyes should be open at all times to the paramount and overriding considerations of the best interests of the child. We do not quarrel with the proposition that the parental and blood relationship is normally a most potent producer of the care, love, and affection which is vital to the best interests of a child, and that such relationship should be given highly preferential consideration. We do quarrel with elevating a highly preferential consideration to the level of absolute right. Besides creating a judicial blindness as to the true considerations present, it results in a tortuous *169wrestling with the narrowed legal concept of “fitness” of a parent. It results in situations where, in order to permit the child to remain in an established and developed parental relationship with all that that imports, we are forced to strain the evidence in order to find the blood parent “unfit.” The harshness and the rigidity of the old common law rule was carefully examined and rejected in the early history of our law in this state. It would seem now that the court returns to the common law rule of the early cases discussed in the Sturtevant and Kaufmann cases.
¶7The district judge, in announcing his decision in this case, made this summary of the evidence of the appellants: “Now, the evidence on behalf of the grandparents, as well as the child, indicates and demonstrates that they have become very attached to the child during the approximate nine years that the child has made its home as a member of their household, and it has been in that home that she has largely been reared since she was two years old, and probably to a large extent by the grandparents because the mother was working, except toward the very end, the mother was actually working most of the time up until her last illness. It really is the only home, you might say, that' the child has ever known since she has been old enough to know where home was. She states she is happy with her grandparents and doesn’t want to leave them and in fact indicated that she didn’t even know her father, that he was a stranger to her.” This statement by the trial court is not only borne out conclusively by the record in this case, but it may be enlarged by the undisputed evidence as to the effect of this fine home and upbringing upon the development of the. girl. She is a top student in school scholastically, is happily adjusted with her friends and schoolmates in the community, and is in ideal health.
¶8The majority opinion orders a destruction and shattering of this established home and the love and security relationship implicit therein.' The effect of this situation *170on the girl herself was dramatically illustrated in the record.
¶9Lin Dee L. Raymond testified that the first time that she could remember having seen her father, the appellee, was when he appeared in court on May 28, 1962. The appellee admitted that the last time he had seen Lin Dee, before the trial, was in December 1953.
¶10Lin Dee’s mother died on November 11, 1961. Shortly thereafter Lin Dee learned that her father wanted to obtain custody of her. Lin Dee became worried and depressed, and on November 26, 1961, the appellants took Lin Dee to a physician. The doctor found no organic illness and prescribed a sedative. On December 6, 1961, her condition had become more serious and she was unable to sleep. On that date the physician prescribed an additional medicine which she takes at night for sleep.
¶11. The opinion of this court holds that this child should be taken from a stable and adjusted home where a normal parental relationship with love and security attachments has developed and that she should be thrust into a home among complete strangers. Her actual custody, control, and supervision will be that of a stepmother who has a child by a previous marriage and two children by the appellee. The appellee is absent from the home 7 days at a time on missile base work and is home once between each 7 days.
¶12In this case the child’s happiness and welfare are assured, for the present at least, if the appellants are allowed to retain custody. To make a change in the custody would, at best, be an experiment which the court has refused in other cases. See, In re Burdick, 91 Neb. 639, 136 N. W. 988, 40 L. R. A. N. S. 887; Williams v. Williams, 161 Neb. 686, 74 N. W. 2d 543. In the Williams case, where the grandparents were allowed to retain the custody of an 8-year-old boy as against his father, this court said: “A court may well hesitate to take the child from such surroundings to try an experiment elsewhere.”
¶13We would find that Lin Dee should be allowed to re*171main with the appellants at this time. In the event that a change of circumstances occurs in the future so that it then becomes in the best interest of Lin Dee that a change in her custody be made, appropriate proceedings may be had at that time.