Edwards, J.
“A judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders.”1
With some significant exceptions, this is a companion case to that of Harmsen v. Fizzell, 351 Mich 86, rehearing granted March 4, 1958, in which this Court dealt with a petition for writ of habeas corpus in relation to 2 children, heard before and granted by the same circuit judge because of procedural errors claimed to have been made by the same probate judge.
In this case, too, the circuit judge, after the hearing on the writ of habeas' corpus, entered orders which would have the effect of removing 2 children from proposed adoptive homes where they had been placed by probate court authority and returning them to parental custody.' The foster parents with whom the children have lived most of their lives to date appeal.
This story starts with the somewhat abrupt abandonment of a minor mother and 2 small children by [102]*102her husband in July of 195'2. The mother tells the story simply:
“My name is Lileth Fritts, and the wife of Doyle Fritts. I am the mother of Sally and Doyle Fritts, the children involved in this case. Sally was born December 19, 1949. Doyle was born December 17, 1951. I am 24. * * *
“Q. What is the date of your-birth?
“A. July 25, 1931. * * *
“Q. Directing your attention to the first day of July, 1952, where were you living?
“A. Watervliet.
“Q. Michigan?
“A. Yes.
“Q. And prior to that date was your husband living with you?
“A. No.
“Q. Prior to July 1st was he living with you ?
“A. No.
“Q. Did he leave you sometime before that date that you called here at the juvenile division of the probate court ?
“A. Yes, he left.
“Q. And was that the result of some argument you had there ?
“A. Yes.
“Q. And how long had he been away before you came down here?
“A. About 2 weeks.
“Q. And during that time did you have Doyle and Sally with you ?
“A. Yes. I heard from him within the 2 weeks. I knew where he went. He went to Bald Knob, Arkansas. He had relatives there. His mother and father. To locate him I wrote his mother immediately. I had $20 while he was away. My husband gave it to me before he left.
“Q. Did you have an argument before he left?
“A. Yes.
“Q. And did he tell you where he was going?-
“A. No.
[103]*103“Q. Did He sénd you any money within that' 2 weeks ?
“A. No.
“Q. Do you remember telling the person in charge of the juvenile division of the court that you had ho milk for your children?
“A. Yes.
“Q. Tell the court something about that.
“A. Well, I went to the law.
“Q. You mean the police?
“A. Yes.
“Q. Goon.
“A. And asked them to give me some milk and some money, but my husband paid it back.
“Q. Did the police at Watervliet give you some money?
“A. Yes.
“Q. And your husband paid them back ?
“A. Yes.
“Q. Did you come down to the juvenile court alone ?
{‘A. Yes.
“Q. And what happened when you went to the juvenile court?
“A. Well, I just went in and told Mrs. Malcolm that I wanted to put my children up for adoption; that I couldn’t take care of them.
“Q. And did you sign anything that day?
“A. Yes, I signed 1 paper she made out for the children.
“Q. You signed a paper who made out?
“A. Mrs. Malcolm. I think that’s what her name is.
“Q. The judge’s name is Malcolm Hatfield; his wife is Mrs. Malcolm Hatfield. Are you talking about her, or are you talking about Mrs. Milton?
“A. Yes, Mrs. Milton.
“Q. Let the record show that. I have in my hands a filé of the juvenile division of the probate court for Berrien county, which is in evidence, and on top show you a paper and ask you if your signature appears on that paper ? , ■ .
“A. Yes.
[104]*104' “Q. Is that the paper you refer to when you say you signed a paper?
“A. Yes.
“Q. Did you read all this before you signed it?
“A. Yes.
“Q. And that is what you told Mrs. Milton?
“A. Yes.
“Q. Where were .your children that day?
“A. They was with my sister.
“Q. You left them with your sister?
“A. Yes.
“Q. Did you have occasion to go to the court later? “A. Yes.
“Q. How many days later?
“A. I went 2 days later.
“Q. What was the purpose of that call?
“A. The same thing. I wanted to see if they was going to put them up for adoption. I knew I couldn’t take care of them.
“Q. You asked them that?
“A. Yes. They told me they wanted me to sign adoption papers for the children. Two days later I signed another paper, 1 in front of Judge Hatfield, the adoption paper he wanted me to sign. This is the paper. I am speaking of, where I asked for the appointment of Hazel Wallsmith as guardian ad litem. That was what I signed that day. I signed the 1 in front of Judge Hatfield, July 3d. These 2. ‘ I told them how old I was.
“Q. Now, I show you another paper in this file which hears the signature of Lileth Marie Fritts and ask you if your signature appears on this paper which I will read.
“A. Yes.
“Q. (Reading): ‘The undersigned being the mother of the said legitimate minor child and having legal authority to make and execute this consent, do hereby consent to the adoption of said child and the change of name of said child, as prayed for in petition of said court.’ Did you sign that?
“The Court: What is the date of that?
[105]*105“Mr. Leckner: The date is July 2, 1952; and that has to do with Doyle, and you signed another just like it for Sally?
“A. That’s right, signed for both. Hazel ‘Wall-smith signed that at the same time. I left Watervliet and went to my sister’s after the 1st of July. I stayed there a day after he left and I stayed with her until I went hack to my husband. I went back to bim about 2 weeks after I gave my children up. I brought my children down here and I went to Wichita, Kansas. My husband was: there.”
The sworn petition signed by the mother on July 1, 1952, served to place most of these facts before the probate court:
“State oe Michigan,
Cause No. ...-.
“The probate court for the county of Berrien,
Juvenile Division.
“In the matter of the petition concerning Sally Ann Fritts, Doyle Almo Fritts, Jr., Minor.
“I, Lileth Marie Fritts, respectfully represent that I reside in the US-12 2d house from Long’s Television of Watervliet in said county, and make this petition as mother
“I further represent that said children are residents of Watervliet in Berrien county, and is now residing with and under the custody and control of mother, and father and ......was born on
Sally, was horn Dec. 19, 1949
Doyle, _ ” 17, 1950
_ “I further represent upon information and belief that said children’s father has quit his job. He has told me that he doesn’t want his children. He drinks continually and heats me up which frightens the children. The father of these children said he was going to Bald Knob, Arkansas, c/o with Mr. and Mrs. Lester Fritts. I had to appeal to the police at Coloma last week for milk for the children
“I would like to put the children in an adoptive home where they will be well cared for.
[106]*106“I further represent that the names,-relationship, ages and residences of nearest of kin and-guardian of said child ...., as I am informed and believe, are as follows: ’
.“I. therefore, pray that the juvenile court take jurisdiction of said child. ■
/S/ “MRS. DOYLE FRITTS
“P.O. LILETH MARIE FRITTS-’
It appears clear, however, that prior to hearing upon this petition the mother rejoined her husband at his former home in Bald Knob, Arkansas, and that they then determined to seek return of their children. On receipt of notice of hearing on the adoption petition, the father wrote the probate judge:
“7-22-52
“Mrs. Malcolm Hatfield
“I am writing to you regarding my children Sally Ann Doyle Jr. Me and my wife have talk things over we have decided to make a home for are children. Wish to know if we could get them befor the 4th of August. If so write and let me know soon.
“Your Truly
“Doyle Fritts
“My add—
Doyle Fritts
5247 N. Arkansas St.
Wichita, Kansas.”
[107]*107And when the hearing date of August 4, 1952, arrived, Mr. and Mrs. Pritts and her mother were in the courtroom. Mr. Pritts’ version of that hearing is as follows:
“After I wrote this letter to the prohate judge Í came to St. Joseph. I appeared in the judge’s office on August 4th. The judge wrote to me and told me when the hearing would be held, so I was here. There was no stenographer in the judge’s office when I appeared. There was no lawyer representing me. Nobody suggested to me that I get a lawyer. I was not sworn. My wife was not sworn. No one was sworn. I said there was no stenographer there.
“Q. Tell us what happened when you were in the room there?
“A. Mrs. Milton read the copy of the paper she had there, and when she got through reading it the judge told us within, after 6 months time, if we got along good, he would see that we got the kids back.”
The report read by the county agent, Mrs. Prances Milton, recited the facts previously referred to above. Her report also detailed 3 separate conferences at which she and the probate judge had unsuccessfully attempted to dissuade the mother from her announced intention of giving up the children. The report was apparently drafted, however, before advice of the reconciliation of the parents and their decision to seek to regain their children. The report concluded:
“Recommendation: In view of the preceding, I recommend that, for the future security of these children, they be made permanent wards of this court .and committed to the Michigan Childrens Institute for the purpose of that institution giving consent to their adoption.” '
Mrs. Milton, the assistant county agent, gave testimony pertaining to the August 4th hearing not [108]*108much different from that previously quoted from the plaintiff:
“Q. Now, at the time of the hearing on August 4th, I understand that you were present, Mrs. Milton?
“A. I was.
“Q. And on that occasion was Mr. Fritts present?
“A. I think that was the date he was present, yes. And, Mrs. Fritts and her mother from Indiana. On that occasion I read the report, in the presence of all those people. The probate judge was present.
“Q. And did Mr. and Mrs. Fritts say anything about the report, about the truth or falsity. of it on that occasion?
“A. Not to my remembrance.
“Q. And what, if you remember, did the judge say or do on that occasion while the Frittses were there ?
. “A. Well,, he talked with them awhile, and then at the end he' gave his decision, and whenever — I’m not a stenographer, but whenever Judge Hatfield gave his decision at the end of anything I always asked him to repeat it slowly so that I could get it down word for word; and I read it back to him word for word so that he knew I had it down verbatim as he gave it, his decision.
“Q. And that happened on that occasion?
“A. Well, I always did that, so I am sure I did it that time.
“The Court: What was his decision on that occasion?
“A. My remembrance is that he wished to find out whether the children would adjust in the new homes to which they had been sent. .
“The Court: They had been there a few days?
“A. Ohj yes. And if they didn’t adjust in those homes and if at the end of a period of time, in case the children did not adjust in those homes, and if the natural parents could prove that they were capable and willing, able in every respect to give them desirable homes, then they would be the first in line to be considered.”
[109]*109At the end of the hearing, the probate judge entered the following order pertaining to Sally Ann and a similar one pertaining to Doyle:
“It is hereby ordered, that the said Sally Ann Fritts be and she is is hereby made a permanent ward of this court and is hereby committed to the Michigan Children’s Institute at Ann Arbor, Michigan, subject to the rules and regulations governing that institution, and for the purpose of adoption.
“And it is further ordered, that should this child for any reason fail to adjust in her present environment, and should the natural parents at that time prove that they have been able to re-establish a satisfactory family life and are then able to properly care for this child, they will be first in line for the replacement of this child.”
It should be noted that these orders, by making these childrén “permanent wards” of the probate court, if valid, acted to sever all parental rights of these parents to these children. CL 1948, § 712A-.20 (Stat Ann 1957 Cum Supp § 27.3178 [598.20]).
The habeas corpus proceeding before the circuit court and this appeal before us pose the question squarely as to whether these orders were valid. (It should be noted that, although petitions are pending, no subsequent adoption orders have ever been entered.)
The trial judge’s opinion found the order of the probate judge void because the notice to the parents of the hearing did not refer to commitment to the Michigan Children’s Institute.
"VVe do not agree. The notice did tell the parents that the hearing contemplated was upon the subject of permanent custody and adoption. No more specific information could have been given to tell them that their parental rights as to their children were at stake. In the event the court found the necessary facts to establish its jurisdiction over the children, [110]*110various dispositions were available to the probate judge under the statute (CLS 1956, § 712A.18 [Stat. Ann 1957 Cum Supp § 27.3178(598.18)]). It was not essential for tbe notice of hearing to contain reference to any particular method of adoption.
Nor do we feel that the petition upon which the hearing was based was inadequate to allege jurisdictional facts of neglect. (See Harmsen v. Fizzell, 351 Mich 86, 95-97.)
In short, we find no procedural deficiency in this record of sufficient substance to warrant the use of habeas corpus; and we note again:
“For us to pry with legal diligence at the technical crevices in old cases which pertain to child custody and adoption matters could spring open a Pandora’s box of troubles.” Harmsen, 351 Mich 86, 106.
After this much has been said, it still is true that there is revealed on this record a glaring defect of substance which undoubtedly moved the circuit, judge to his basic decision in this case and which serves to justify his use of the remedy of habeas corpus.
A distinguished group of juvenile court judges has recently published a careful study of juvenile' court proceedings. In it the characteristics of a juvenile court hearing are noted:
“There are 3 aspects to a juvenile court hearing, 2 of which are purely legal and the 3d socio-legal. They are: (1) the determination of jurisdiction to hear the case; (2) the adjudication of the issue of delinquency, neglect (or dependency); and (3) the determination of disposition. ...
“It is necessary first to determine the jurisdictional facts, i.e., that the alleged act falls within the purview of the statutes fixing the court’s jurisdiction of the subject matter, and that all necessary parties have been given due notice so that the requirements of due process- have been met. . .. •
[111]*111.'“Having'determined that the court has jurisdiction of both subject matter and person, the court should then proceed to determine the facts.” National Probation and Parole Association, Guides for Juvenile Court Judges, pp 59, 60.
We believe the probate court had jurisdiction of the persons and the subject matter for purposes of hearing the neglect complaint. The children resided in the county- concerned. The essential parties had notice. The mother’s petition in the instant case served to allege neglect and dependency of the 2 children. The essential facts alleged- were the father’s abandonment of her and them., the break-up of the family and the absence of any support for the children.
When the day set for hearing arrived, however, the probate court .was on ample notice that the facts pertaining to neglect had changed materially and that the question of the court’s right to take custody of these children was in dispute. In the absence of legal representation, the father’s letter of July 22d should have been regarded as placing the issue of neglect in dispute.
Where jurisdictional facts are in dispute, even though the statute authorizes informality of hearing (CL 1948, § 712A.17 [Stat Ann 1957 Cum Supp § 27.3178(598.17)]), a final order of permanent custody acting to sever all parental rights must be based on legal evidence and cannot be based on hearsay and report alone. Harmsen, 351 Mich 86, 103; In re Hill, 78 Cal App 23 (247 P 591).
See, also, People v. Lewis, 260 NY 171 (183 NE 353, 86 ALR 1001); In re Inquiry of Mantell, 157 Neb 900 (62 NW2d 308, 43 ALR2d 1122).
“Where there-is a dispute about the basic facts, adult witnesses should be sworn. Placing of children under oath should be in the sound discretion of the court, subject to statutory provisions, if any. It is [112]*112good policy to permit parents, the child, and witnesses to give testimony in narrative form with as few technical objections as possible. It should be remembered, however, that the juvenile court hearing is not a criminal, but essentially and legally a civil proceeding of a chancery nature, and the rules of equity procedure and evidence should be followed. Unimportant technicalities need not be emphasized. In addition, the judge should eliminate hearsay and accept the testimony of competent witnesses only. Guaranteeing the basic rights of the individual is a responsibility of the judge even though the child or his parents may not be aware of or claim them at the time.” National Probation and Parole Association, Guides for Juvenile Court Judges, p 61.
The glaring defect in this proceeding to which we have referred pertains to the evidence (or lack thereof) presented at the hearing upon which the probate judge based his order.
We note at the outset that the probate court has no inherent powers. Its right to take jurisdiction of children and to govern their lives is based entirely on Constitution and statute. The Michigan Constitution (1908), art 7, §13, provides that:
“In each county organized for judicial purposes, there shall be a probate court. The jurisdiction, powers and duties of such courts and of the judges thereof shall be prescribed by law, and they shall also have original jurisdiction in all cases of juvenile delinquents and dependents.”
Our Michigan statute provides:
“Except as provided herein, the juvenile division of the probate court shall have: * * *
“(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county
“(1) Whose parent or other person legally responsible for the care and maintenance.of such child, when able to do so, neglects or refuses to provide [113]*113proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals or well-being, or who is abandoned by his parents, guardian or other custodian, or who is otherwise without proper custody or guardianship.” CLS 1956, § 712A.2 (Stat Ann 1957 Cum Supp §27.3178[598.2]).
Another section provides, in cases where neglect or dependency is established, for the court to enter either temporary or permanent custody orders:
“The court in all cases involving custody shall state in the order for disposition or any supplemental order of disposition whether the child is placed in the temporary or permanent custody of the court. If the child is placed in the temporary custody of the court, no supplemental order of disposition providing permanent custody, or containing any other order of disposition shall be made except at a hearing pursuant to issuance of summons or notice as provided in sections 12 and 13 of this chapter. If the child is placed in the permanent custody of the court, all parental rights are terminated, though such rights may be reinstated by a supplemental order of disposition.” CL 1948, § 712A.20 (Stat Ann 1957 Cum Supp § 27.3178[598.20]).
There must, therefore, be some testimony of neglect before the probate court has the power to take jurisdiction of the child and to enter valid order under the disposition section of the code (CLS 1956, § 712A.18 [Stat Ann 1957 Cum Supp § 27.3178(598.-Í8)]).
After some consideration of the problem, we distinguish here between the testimony which would afford support for an order taking temporary custody for reasons of neglect and that necessary to support a permanent custody order.
[114]*114. Such, a distinction may not be found clearly spelled out in the statute (section 20) quoted above. Yet we note the obvious unconstitutionality of the statute if facts of purely temporary neglect could suffice to support the entry of a permanent custody order severing all parental rights. Where, for example, a wholly normal family is confronted with the sudden emergency of a house destroyed by fire — the proven lack of proper shelter for the children for the next 24 or 48 hours could not, under our concept of due process, support an order of the court taking permanent custody and severing all parental rights.
We seek to save legislation from unconstitutionally wherever possible by reasonable and permissible interpretation. People v. Piasecki, 333 Mich 122; Cady v. City of Detroit, 289 Mich 499; Thompson v. Auditor General, 261 Mich 624; Screws v. United States, 325 US 91 (65 S Ct 1031, 89 L ed 1495, 162 ALR 1330); Anniston Manfg. Co. v. Davis, 301 US 337 (57 S Ct 816, 81 L ed 1143); National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 US 1 (57 S Ct 615, 81 L ed 893, 108 ALR 1352); Ashwander v. Tennessee Valley Authority, 297 US 288 (56 S Ct 466, 80 L ed 688).
. Here, we find the legislative intent plainly set forth in the use of the words “temporary” and “permanent.” In accordance with that legislative intent, we hold that, while evidence of temporary neglect may suffice for entry of an order taking temporary custody, the entry of an order for permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the long-run future.
In our instant case, at the time of hearing, the probate judge had before him no evidence of neglect, either of long duration in the past, or from which any reasonable prediction of future neglect of permanent duration could be made. The order taking [115]*115permanent custody of these children clearly exceeded the statutory authority of the court and was void.
Even where, as here, a court has jurisdiction of the persons and the subject matter, an order affecting personal liberty which clearly exceeds the court’s statutory authority may be attacked by habeas corpus. In re Mills, 131 Mich 325; In re Allen, 139 Mich 712; In re Joseph Nowack, 274 Mich 544.
See, also, Freedman v. Freedman, 303 Mich 647; In re McKinney, 326 Mich 190; In re Mills, 135 US 263 (10 S Ct 762, 34 L ed 107); In re Bonner, 151 US 242 (14 S Ct 323, 38 L ed 149); 25 Am Jur, Habeas Corpus, §§ 78-80, 83.
We hold that the orders entered by the probate-judge taking permanent custody of these children were void for want of proof of essential jurisdictional facts of neglect.
Nor did the provisional aspect of the order serve to obviate its basic invalidity. It is totally inappropriate' to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and the question of neglect of their children must be measured by statutory standards without reference to any particular alternative home which may be offered the children.
In the absence of evidence of neglect such as we have referred to, the very preamble to the sections of the probate code dealing with juveniles establishes the strong preference for parental custody.
“While proceeding under this chapter, the probate court shall be termed the juvenile division of the probate' court.
“Proceedings under this chapter shall not be deemed to be criminal proceedings.
“This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home; as will be con[116]*116ducive to the child’s welfare and the best interest of the State and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.” CL 1948, § 712A.1 (Stat Ann 1957 Cum Supp § 27.3178 [598.1]).
There must be real evidence of long-time neglect, or serious threats to the future welfare of the child, to overthrow permanently the natural and legal right of parents to the custody and nurture of their own children. CLS 1956, § 703.6 (Stat Ann 1957 Cum Supp § 27.3178 [206]); In re Goldinger, 207 Mich 99; Burkhardt v. Burkhardt, 286 Mich 526; Riemersma v. Riemersma, 311 Mich 453. Such rights are not subject to termination as a result of a brief marital dispute, or even by a temporary period of desertion by 1 of the parents.
In Harmsen, 351 Mich 86, 110, we said:
“We are not unmindful of the fact that a father whose parental rights have not been legally severed should be given society’s assistance at every point in his effort to re-establish a proper home for the children for whose care he has the right and duty to provide.”
On the present record, there was even greater reason for society to attempt to help reunite and restore this family.
We are not unmoved by the plight of the foster parents and by the possibility 'of real damage in the lives of these 2 children. The circuit judge noted:
“The testimony taken at the hearing in this court discloses that Jack H. Krugh and Marguerite R. Krugh and Dale Wells Graham and Inez Gertrude Graham, now providing homes and care, support and education for Doyle Almo Fritts and Sally Ann Fritts, respectively, are as qualified in every respect as foster parents of said children as it is possible to [117]*117obtain. They are all giving a full measure of devotion, love and affection to these children as a spirit of unselfishness and self sacrifice that leaves nothing for challenge. The children themselves are shown to be well adjusted and happy in their present environment, fully responsive to the excellent care they are receiving from these foster parents.”
It is greatly to be regretted that the original appeal from the denial of a motion to vacate the permanent custody order was not promptly brought to issue. We cannot, however, say on this record that these parents of limited education and means had ever abandoned their efforts to regain their 2 children.
We also note such testimony pertaining to recent years as bears upon the fitness of the parents. Two more brief separations of man and wife in 1955 were followed by prompt reconciliation. The basic facts appear to be that the father and mother of our 2 children have lived together in the intervening years; that he has worked steadily and supported his family; that she has kept house and borne 2 more children; and at the time of hearing before the circuit court there was a history of an intact family marred by 3 marital arguments and brief separations. We are not prepared to say that these of and by themselves suffice to prove such unfitness as would have required the circuit judge to dismiss their petition.
We regard habeas corpus proceedings pertaining to custody as essentially equitable in nature. In re Leu, 240 Mich 240; Harmsen v. Fizzell, 351 Mich 86. We affirm the decision of the circuit judge but remand these matters for the entry of orders allówiríg a reasonable time for the transfer of physical custody from the present foster parents to the parents under the supervision of the appropriate arm of the court with the purpose of occasioning as little damage as possible in the lives of these children.
Modified and affirmed. No costs.
[118]*118
ADDENDUM
In view of the important human and legal issues posed by this ease and the conflicting opinions herein, those who sign this opinion desire to re-emphasize several points.
The circuit judge who heard the petition for the writ of habeas corpus found the orders of the Berrien county probate court juvenile division to be void, and in the course of our appellate process his decision on this point is before us for review. These orders were entered August 4, 1952.
Let us carefully note the state of the record before the probate court on that date. There was a sworn complaint. Its allegations of neglect and dependency were disputed by the parents who, reunited, were present in the courtroom to contest it. As far as this record discloses, no witness was called except the county agent whose report was based largely on what she had been told. Nothing resembling legal evidence was offered to establish abuse of or neglect of the children. Such charges as the record contains pertaining to the father’s treatment of the mother have apparently never been tried in any court and, while uttered under oath in complaint form by the mother, have never been repeated by her in the husband’s presence with right of confrontation and cross-examination. In effect, the mother’s own statements about her husband in the midst of a marital dispute repeated in hearsay form have been employed to defeat her own efforts to regain custody of her children. We reiterate that where the fundamental facts of neglect are in dispute, our Constitution and statute require some legal evidence to support the court’s assertion of jurisdiction.
We again make reference to the disputed orders which we have previously held void:
“It is hereby ordered, that the said Sally Ann Fritts be and she is hereby made a permanent ward [119]*119of this court and is hereby committed to the Michigan Children’s Institute at Ann Arbor, Michigan, subject to the rules and regulations governing that institution, and for the purpose of adoption.
“And it is further ordered, that should this child for any reason fail to adjust in her present environment, and should the natural parents at that time prove that they have been able to re-establish a satisfactory family life and are then able to properly care for this child, they will be first in line for the replacement of this child.”*
The concept of the relationship of his court to the family entertained by the probate judge, and exemplified in his orders, is one for which we find no warrant in the law of this State or, for that matter, any one of these United States.
It will be noted that these orders do not indicate a final judgment on the part of the probate judge on the facts presented to him that the parents are either unable, unwilling or incapable of offering a proper home and guardianship to these children. On the contrary, the orders on their face suggest the conclusion that, while the parents may well prove to be proper custodians for their own children, the probate judge had, in his view, succeeded in finding parents for each of them who were superior to those whom nature and the Deity had provided.
We have previously noted the strong preference for parental guardianship in the prefatory paragraph to the juvenile sections of our probate code and in our Michigan case law. In a recent case, the supreme court of Minnesota phrased this preference thus:
“It is too well settled to require citations that the right of a parent to the custody of a child is paramount or superior to that of any other person; that a mother is presumed to be a fit and suitable [120]*120person to be entrusted with the care of her child; and that the burden of disproving this presumption rests upon the person challenging it.” In re Larson, 252 Minn 490 (91 NW2d 448, 453).
We believe that no such discretion as these orders seem to assert is vested by the law of this State in a probate judge sitting in the juvenile division, absent facts upon which a finding could be made, that the natural and legal parents of a child had become incapable of discharging the duties of parenthood according to the accepted standards of society, or had by their own conduct so neglected, abused or abandoned their children as to constitute an abdication and waiver of their rights of parenthood.
In ou-r view, the orders entered were beyond the statutory power conferred upon the probate judge and were void. In the language of our habeas corpus act, “the jurisdiction of such court * * * has been exceeded.” CL 1948, § 637.29 (Stat Ann § 27.2272).
We now turn to the concept of the writ of habeas corpus at issue in this case. There is no need to recite the great use in the history of the development of freedom which the courts have made of this writ of last resort. Nor do we think our State or nation have reached such a point of civilized development that the powers. exercised under this writ should now be narrowly circumscribed.
The suggestion is made to us that the court which hears a writ of habeas corpus and finds a court order offered in justification of the detention or deprivation of freedom concerned, may only inquire as to whether or not the other court had jurisdiction in the narrow sense of (1) jurisdiction of the persons; and (2) jurisdiction of the subject matter of the dispute. This view would have the advantage of resolving many past varying usages of the word “ju[121]*121risdietion.” But it has the disadvantage of depriving the courts in a hearing on a writ of habeas corpus of the power to strike down an unjust order which is patently ultra vires, or an order entered in obvious violation of constitutional rights. The United State supreme court has many times, in cases of great historic importance, employed a broader concept of the power of habeas corpus. Ex parte Lange, 18 Wall (85 US) 163 (21 L ed 872); Hans Nielsen, Petitioner, 131 US 176 (9 S Ct 672, 33 L ed 118); Moore v. Dempsey, 261 US 86 (43 S Ct 265, 67 L ed 543); Johnson v. Zerbst, 304 US 458 (58 S Ct 1019, 82 L ed 1461, 146 ALR. 357); Bowen v. Johnston, 306 US 19 (59 S Ct 442, 83 L ed 455); Walker v. Johnston, 312 US 275 (61 S Ct 574, 85 L ed 830); Wade v. Mayo, 334 US 672 (68 S Ct 1270, 92 L ed 1647). This Court has likewise employed the same broad view of the powers of the writ of habeas corpus. In re Mills, 131 Mich 325; In re Allen, 139 Mich 712; In re Nowack, 274 Mich 544; Freedman v. Freedman, 303 Mich 647; In re McKinney, 326 Mich 190; In re Maddox, 351 Mich 358.
In discussing arguments for restrictions upon the use of the writ of habeas corpus, Mr. Chief Justice Hughes said:
“But the rule, often broadly stated, is not to be taken to mean that the mere fact that the court which tried the petitioner had assumed jurisdiction, necessarily deprives another court of authority to grant a writ of habeas corpus. As the court said in the case of In re Coy, 127 US 731, 757, 758 (8 S Ct 1263, 32 L ed 274), the broad statement of the rule was certainly not intended to go so far as to mean, for example, ‘that because a Federal court tries a prisoner for an ordinary common-law offense, as burglary, assault and battery, or larceny, with no averment or proof of any offense against the United States, or any connection with a statute of the United [122]*122States, and punishes him by imprisonment, he cannot be released by habeas corpus because the court which tried him had assumed jurisdiction.’ Despite the action of the trial court, the absence of jurisdiction may appear on the face of the record (see In re Snow, 120 US 274 [7 S Ct 556, 30 L ed 658] ; Hans Nielsen, Petitioner, 131 US 176, 183 [9 S Ct 672, 33 L ed 118]) and the remedy of habeas corpus may be needed to release the prisoner from a punishment imposed by a court -manifestly without jurisdiction to pass judgment.
“It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange, 18 Wall (85 US) 163 (21 L ed 872).” Bowen v. Johnston, 306 US 19, 26, 27 (59 S Ct 442, 83 L ed 455).
We hold that the orders entered upon the record of this hearing, as certified to us by the participating parties, represented an erroneous concept of the power conveyed by statute upon the probate court-sitting in juvenile division, and that, being based upon no evidence of permanent neglect, they represented a fundamental miscarriage of justice as to these petitioners and exceeded the statutory powers of the probate judge who entered them.
As indicated previously, we likewise hold that a permanent deprivation of parental rights, based upon the record certified to us here, would represent, if authorized by statute, a violation of due process of law as far as these parents are concerned.
We believe that these petitioners presently have no other remedy than the petition for the writ here considered. The suggestion that a motion to restore parental rights once lost is the equivalent of the right to contend that such rights were severed in violation of both statute and Constitution does not in our view require more than the noting of our disagreement.
[123]*123We have previously indicated that after determining the legal issue pertaining to the permanent custody orders attacked by the writ of habeas corpus before him, the circuit judge had the additional duty, since habeas corpus proceedings in relation to custody of children are essentially equitable in nature, to concern himself with the welfare of the children as of the time he heard the case. We find no reason upon the record written before him to hold that he failed in his duty in this regard.
It is, of course, obvious that what we decide in relation to this case becomes res judicata only as to the issues which were litigated and decided at the circuit court hearing on the petition for writ of habeas corpus, and that it constitutes no prejudice to any rights which the parties may have to call the attention of the proper courts to facts, if any, which raise issues not disposed of there.
Dethmers, C. J., and Carr, and Kelly, JJ., concurred with Edwards, J.
Prior to the amendment by PA 1953, No 193, this matter was contained in subdivision (a) (6) of CL 1948, § 7Í2A.2.