The opinion
RUDOLPH, J.
(dissenting). Conceding that the judgment entered in Douglas County was binding as between the former husband and wife, it was not binding upon the Wolffs who were not parties to that proceeding. The court in Douglas County, furthermore, did not base its decree upon the best welfare of the children. That court simply accepted the North Dakota decree and determined that Mrs. McGuire was a fit person.
The North Dakota decree was not based upon conditions shown to exist in the present proceeding. That decree was premised upon the finding that the father was in South Dakota, had remarried-and was “living with -his wife and seven children in a trailer house, and that he was moving from *546 place to place, and that it is not for the best interests of the said children that they be left with the said defendant.”
In this proceeding circumstances entirely different concerning the welfare of these children were disclosed to the Pennington County court 'by the Wolffs. It is my view that the court in this proceeding may consider these changed circumstances and determine in whose custody the welfare of the children will be best served.
This court has announced on numerous occasions that the best interests and welfare of the child are of paramount and controlling importance. Sweeney v. Joneson, 75 S.D. 213 , 63 N.W.2d 249 , and cases therein cited. Also that statutory and parental rights are not conclusive but must yield to the child’s best interests and welfare. Nannestad v. Nannestad, 44 S.D. 241 , 183 N.W. 541 ; Ashmore v. Hedblom, 64 S.D. 513 , 268 N.W. 429 . In Blow v. Lottman, 75 S.D. 128 , 59 N.W.2d 825 , it was held that the best interests of a child are served by being in the custody of a parent unless it is shown the parent is unfit but this holding is based upon the conclusive presumption to that effect. Certainly this presumption should not be extended to others, especially a grandmother 57 years old, living with a second husband who is not related to the child. Apart from a parent, therefore, it is not simply a question of fitness which determines the right of custody, but the question always is the best interests and welfare of the child.
More than a year elapsed between the time of the North Dakota decree awarding custody of the children to Mrs. McGuire, and the commencement of this proceeding and as stated above, the court in Douglas County only accepted this North Dakota decree and determined the fitness of Mrs. McGuire. The Arizona Court in the case of Dickason v. Sturdavan, 50 Ariz. 382 , 72 P.2d 584, 587 , stated what I think should be the rule, and which is entirely consistent with our prior holdings. That court said, “In deciding this question (custody of a child) the court should always be guided by what it -believes to be the best interest of the child and this can only be ascertained from the facts presented when the matter is heard. The fact that some other court or a different *547 judge of the same court, or even the same one, felt, when the question was presented to it three or four weeks or any other period of time prior thereto, that the child’s best interest demanded that it be placed with one person, does not mean that this would necessarily be true then. The court before which the matter is later heard must consider it in the light of the child’s surroundings then and, since these frequently change, the child’s best interest at that time is the guide to a correct decision. * * * Neither stare decisis nor res adjudicata has any application in this situation.” See also Roll v. Roll, 143 Kan. 704 , 56 P.2d 61 .
The court in Pennington County was confronted with a state of facts far different than those disclosing that the children were among a total of seven living in a trailer house with their father and stepmother and moving from place to place under unsavory conditions. At the time of the trial in Pennington County these children had been in the Wolff home for approximately one year. They'were adjusted to this home which was in every respect a proper home in which to rear children. They had the love and affection of the Wolffs and returned this love and affection in kind. Before coming to the Wolff home they had been first with the mother then with the father, both of whom had been declared unfit by the North Dakota court. While not having been judicially declared dependent or neglected the children were nevertheless such in fact, at the time they were taken into the Wolff home. They had really not known the meaning of a good home until it was provided by the Wolffs. The trial judge visited with the children with Mrs. McGuire present, again with the Wolffs present and then with the children when no one else was present. The children expressed a preference of staying with the Wolffs. It appears that Mrs. McGuire had not sought custody of these children of her own volition but only after urging by the mother. Nor did Mrs. McGuire institute the proceeding in Douglas County. It was the mother who brought that action. Mrs. McGuire is a woman 57 years of age who has had the children in her home only infrequently for short periods of time — she is no doubt a fit person morally and financially to have custody of children, but by the *548 time these children will most need guidance she will be well advanced in years. She has raised her family who are all grown and have families of their own. No doubt as the years pass the rearing of a second family would 'become more of a burden than she now anticipates and it is very probable that these children could not stay •with her until their maturity.
Other facts appearing in the record no' doubt were considered by the court in making its determination that it was for the best interests of these children to remain with the Wolffs. But the above is sufficient to disclose that the trial court’s decision was based upon substantial evidence.
I respectfully dissent.