¶1dissenting.
¶2Under the circumstances of this case, we should exercise our discretion so as to decide, in this habeas corpus proceeding, the best interests of the child. We have a Master’s report, issued after a hearing at which both parties had the opportunity to present evidence. I believe that we should now determine custody, rather than remitting the parties to still another hearing in circuit court.
¶3I agree that the order of February 22, 1983 was void. A Texas court nevertheless acted on the basis of this order and delivered the custody of Jeremy to respondent, where it has remained ever since. Our *246courts have not acted promptly to correct the premature exercise of power. The situation today is substantially different from that of February of 1983. Part of the blame must be assessed against this Court. We should have acted promptly when apprised of the jurisdictional defect. But we accepted original jurisdiction and took steps toward resolution of the merits. In this posture the problem cannot be solved simply by setting the respondent back to square one, or by nullifying the entire play because of a flag. The child has become accustomed to a new environment. His present best interests should be assessed in this context, as soon as possible.
¶4Because the majority of the Court remits the respondent to his remedies in circuit court, I express no opinion as to how I would rule the merits. We are not bound by the Master’s report. Having issued our writ, I would proceed to a final decision on the basis of the parties’ briefs and arguments now before us.