¶1I fully agree with the majority that it is this court’s duty to "make sure that contested custody proceedings … [are] conducted in a forum and in a manner that promotes the best interests of the child”. It seems plain to me that this court had that obligation in mind on March 17, 1978 when it directed the Greene County Family Court to make a prompt determination of petitioner’s application for custody. As the proper tribunal, and in accordance with its responsibilities, the Family Court complied with our directive. It conducted a hearing, took testimony from a number of witnesses, and concluded that it was in the child’s best interest to remain in the Spath’s temporary custody with the right to petition to adopt the child. Not to be overlooked is the fact that, pursuant to stipulation of the parties, an independent investigation was conducted by a child service agency to aid the Family Court and its Law Guardian in arriving at their ultimate decisions. This record certainly supports the conclusion that the welfare, happiness and best interest of the child will be most beneficially served by an affirmance of the Family Court order. To deny the Spaths the right to petition to adopt this child merely because they filled a vacuum created by the inadequacy or lapses of two county Departments of Social Services would not serve her interests nor, in my mind, would it fulfill the duty of this court.
¶2The order appealed from should be affirmed.
¶3Greenblott, Main and Mikoll, JJ., concur with Mahoney, P. J.; Kane, J., dissents and votes to affirm in an opinion.
¶4*493Order reversed, on the law and the facts, without costs, petition dismissed and matter remitted to the Family Court of Greene County for further proceedings not inconsistent herewith.