Smith, J.
A former affirming opinion, filed December 16, 1952, has been withdrawn on rehearing. It will be found reported in 56 N.W.2d 145.
The child, Randall Lee Cheney, was born August 11, 1946, according to the adoption petition (filed January 9', 1952). His “address” was given as Sumner, Iowa, which is in Bremer County. The adoption petitioners, David E. Keith and Margaret U. Keith, reside in Black JLwwk County where the proceeding was brought.
The petition states the child’s mother, “Lena Borneman”, was divorced from the child’s father, William Cheney, and that she was, until her death December 23, 1951, the parent having the sole care and right to provide for the child’s wants. There [1183]*1183is, in the petition, no mention of her marriage to Arlo A. Copp, appellant here, nor is he mentioned as having present custody of the 5%-year-old minor.
The adoption petition alleges that William Cheney, the father, has never furnished care and support for the boy, is not a resident of Iowa, that his whereabouts is unknown and that personal service cannot be had upon him in Iowa. The proposed adopters also allege “the child has been under their care for twelve months prior to the filing of this petition as required by section'6Ó0.2 of the 1950 Code.”
Immediately upon the filing of the adoption petition the court set it for hearing February 1, 1952, and ordered that notice thereof to William Cheney be once published in the Waterloo Courier “not less than 10 days prior to said hearing”; also that the Family Service League of Waterloo “proceed to verify the statements made in the aforesaid petition and make such other inquiry and investigation as provided by section 600.2, Code of 1950, and report findings to this court forthwith.”
On February 1, 1952, there was filed a sworn statement by David E. Keith to the effect that he was the guardian of the person of the minor and “consented” to the adoption of the child by himself and his wife, the other petitioner. There is no allegation the boy was in his care.
The same day the report of the Family Service League was filed, which seems to have been the only evidence taken. Its contents are immaterial to our present inquiry. The decree of adoption was at once entered.
On March 26, 1952, Arlo A. Copp filed a petition to vacate that decree, alleging Randall Lee Cheney was the child of Lena Cheney, that she and petitioner Copp were married approximately three years before her death and that the boy resided in their home with them thereafter until she was killed in an auto accident December 23, 1951, in which both petitioner and the boy were injured and that both were thereafter in a West Union, Fayette County, hospital for a “considerable time.”
Petitioner alleges that since the marriage of himself and the boy’s mother “and at all times up to and including the date of her death the said Randall Lee Cheney was in the custody of the [1184]*1184said Lena Cheney Copp and your petitioner and that they provided for his maintenance and support and since the death of the said Lena Cheney Copp” the boy “at all times remained in the custody of your petitioner and was supported by -him” and that both were still in the hospital when the adoption petition was filed.
Petitioner Copp further alleges he learned, on or about January 18, 1952, while he was convalescing, of a guardianship petition of David E. Keith filed in Butler County. He sets out correspondence between his own and Mr. Keith’s attorney concerning the proposed guardianship but alleges he knew nothing of the then pending adoption proceeding until after the decree when Mr. and Mrs. Keith called on him, presented a certified copy of the adoption decree and demanded custody of the boy.
An “answer and resistance” was filed by the Keiths on May 5, 1952, and May 27 the court on their motion for separate hearing on issues of law (probably under rule 105, R.C.P.) entered “judgment and decree” denying the petition to vacate. From that ruling this appeal is taken. "
In the meantime, on May 15, 19'52, a belated “consent to adoption” had been filed, purporting to be signed by the boy’s father, William Cheney, before a justice of the peace in Massachusetts.
The case is not before us on the merits to determine as to the propriety or desirability of the proposed adoption or as to the suitability of the proposed adoptive parents. Nor is the question of the best interests of the child here involved. There is the sole legal inquiry as to the sufficiency of appellant-Copp’s petition to vacate the adoption decree and his right to maintain it. ITe urges various contentions but we shall dispose of the case on those we deem fundamental.
I. We think there is no doubt the stepfather pleaded facts sufficient to establish his right to appear and litigate the question. We said in Gerdes v. Weiser, 54 Iowa 591, 593, 7 N.W. 42, 43, 37 Am. Rep. 229: “When a man stands in loco parentis, he is entitled to the rights and subject to the liabilities of an actual parent, although he may not have been legally compelled to assume that situation. Williams v. Hutchinson, 3 [1185]*1185N. Y. 312; Stone v. Carr, 1 Esp. 1; Cooper v. Martin, 1 East. 82; and see Bradford v. Bodfish, 39 Iowa 681.”
That such is still the law and is applicable to stepparents who have assumed the role of in loco parentis, see 67 C. J. S., Parent and Child, sections 71-73, 78-80; 39 Am. Jnr., Parent and Child, sections 61, 62.
The authorities make clear that the relationship of one in loco parentis does not arise because he is a stepparent but because he lawfully assumes the obligations of a parent: “A stepparent-does not, merely by reason of the relation, stand in loco parentis to the stepchild * * *. However, a stepparent who voluntarily receives the stepchild into the family and treats it as a member thereof stands in the place of the natural parent, and the reciprocal rights, duties, and obligations of parent and child subsist, and continue as long as such relation continues.” 67 C. J. S., Parent and Child, section 79; 39 Am. Jur., Parent and Child, section 62.
It has been said the relationship is favored by the law. Coakley v. Coakley, 216 Mass. 71, 102 N.E. 930, 931, Ann. Cas. 1915A 867; and that a presumption arises that a stepfather who voluntarily assumes the care and custody of the child intends to assume the duties and obligations of a natural parent. Gerber v. Bauerline, 17 Or. 115, 19 P. 849.
II. It is proper to state that while adoption is purely statutory and had no place in the common law as pointed out by the trial court, our statutes have from earliest times provided for it in some form. Prior to 19'27, when the present procedure was provided, no judicial proceeding was required. Adoption was based solely on consent and was consummated by contract between the proposed adopter and someone (usually the parent or parents) authorized to speak for, and able to deliver custody of, the child. The procedure was never adversary. It could not be used as a means of acquiring custody of the child but depended on custody already existing. As said by the Missouri Supreme Court in Child Saving Institute v. Knobel, 327 Mo. 609, 621, 37 S.W.2d 920, 927, 76 A. L. R.
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Smith, J.
A former affirming opinion, filed December 16, 1952, has been withdrawn on rehearing. It will be found reported in 56 N.W.2d 145.
The child, Randall Lee Cheney, was born August 11, 1946, according to the adoption petition (filed January 9', 1952). His “address” was given as Sumner, Iowa, which is in Bremer County. The adoption petitioners, David E. Keith and Margaret U. Keith, reside in Black JLwwk County where the proceeding was brought.
The petition states the child’s mother, “Lena Borneman”, was divorced from the child’s father, William Cheney, and that she was, until her death December 23, 1951, the parent having the sole care and right to provide for the child’s wants. There [1183]*1183is, in the petition, no mention of her marriage to Arlo A. Copp, appellant here, nor is he mentioned as having present custody of the 5%-year-old minor.
The adoption petition alleges that William Cheney, the father, has never furnished care and support for the boy, is not a resident of Iowa, that his whereabouts is unknown and that personal service cannot be had upon him in Iowa. The proposed adopters also allege “the child has been under their care for twelve months prior to the filing of this petition as required by section'6Ó0.2 of the 1950 Code.”
Immediately upon the filing of the adoption petition the court set it for hearing February 1, 1952, and ordered that notice thereof to William Cheney be once published in the Waterloo Courier “not less than 10 days prior to said hearing”; also that the Family Service League of Waterloo “proceed to verify the statements made in the aforesaid petition and make such other inquiry and investigation as provided by section 600.2, Code of 1950, and report findings to this court forthwith.”
On February 1, 1952, there was filed a sworn statement by David E. Keith to the effect that he was the guardian of the person of the minor and “consented” to the adoption of the child by himself and his wife, the other petitioner. There is no allegation the boy was in his care.
The same day the report of the Family Service League was filed, which seems to have been the only evidence taken. Its contents are immaterial to our present inquiry. The decree of adoption was at once entered.
On March 26, 1952, Arlo A. Copp filed a petition to vacate that decree, alleging Randall Lee Cheney was the child of Lena Cheney, that she and petitioner Copp were married approximately three years before her death and that the boy resided in their home with them thereafter until she was killed in an auto accident December 23, 1951, in which both petitioner and the boy were injured and that both were thereafter in a West Union, Fayette County, hospital for a “considerable time.”
Petitioner alleges that since the marriage of himself and the boy’s mother “and at all times up to and including the date of her death the said Randall Lee Cheney was in the custody of the [1184]*1184said Lena Cheney Copp and your petitioner and that they provided for his maintenance and support and since the death of the said Lena Cheney Copp” the boy “at all times remained in the custody of your petitioner and was supported by -him” and that both were still in the hospital when the adoption petition was filed.
Petitioner Copp further alleges he learned, on or about January 18, 1952, while he was convalescing, of a guardianship petition of David E. Keith filed in Butler County. He sets out correspondence between his own and Mr. Keith’s attorney concerning the proposed guardianship but alleges he knew nothing of the then pending adoption proceeding until after the decree when Mr. and Mrs. Keith called on him, presented a certified copy of the adoption decree and demanded custody of the boy.
An “answer and resistance” was filed by the Keiths on May 5, 1952, and May 27 the court on their motion for separate hearing on issues of law (probably under rule 105, R.C.P.) entered “judgment and decree” denying the petition to vacate. From that ruling this appeal is taken. "
In the meantime, on May 15, 19'52, a belated “consent to adoption” had been filed, purporting to be signed by the boy’s father, William Cheney, before a justice of the peace in Massachusetts.
The case is not before us on the merits to determine as to the propriety or desirability of the proposed adoption or as to the suitability of the proposed adoptive parents. Nor is the question of the best interests of the child here involved. There is the sole legal inquiry as to the sufficiency of appellant-Copp’s petition to vacate the adoption decree and his right to maintain it. ITe urges various contentions but we shall dispose of the case on those we deem fundamental.
I. We think there is no doubt the stepfather pleaded facts sufficient to establish his right to appear and litigate the question. We said in Gerdes v. Weiser, 54 Iowa 591, 593, 7 N.W. 42, 43, 37 Am. Rep. 229: “When a man stands in loco parentis, he is entitled to the rights and subject to the liabilities of an actual parent, although he may not have been legally compelled to assume that situation. Williams v. Hutchinson, 3 [1185]*1185N. Y. 312; Stone v. Carr, 1 Esp. 1; Cooper v. Martin, 1 East. 82; and see Bradford v. Bodfish, 39 Iowa 681.”
That such is still the law and is applicable to stepparents who have assumed the role of in loco parentis, see 67 C. J. S., Parent and Child, sections 71-73, 78-80; 39 Am. Jnr., Parent and Child, sections 61, 62.
The authorities make clear that the relationship of one in loco parentis does not arise because he is a stepparent but because he lawfully assumes the obligations of a parent: “A stepparent-does not, merely by reason of the relation, stand in loco parentis to the stepchild * * *. However, a stepparent who voluntarily receives the stepchild into the family and treats it as a member thereof stands in the place of the natural parent, and the reciprocal rights, duties, and obligations of parent and child subsist, and continue as long as such relation continues.” 67 C. J. S., Parent and Child, section 79; 39 Am. Jur., Parent and Child, section 62.
It has been said the relationship is favored by the law. Coakley v. Coakley, 216 Mass. 71, 102 N.E. 930, 931, Ann. Cas. 1915A 867; and that a presumption arises that a stepfather who voluntarily assumes the care and custody of the child intends to assume the duties and obligations of a natural parent. Gerber v. Bauerline, 17 Or. 115, 19 P. 849.
II. It is proper to state that while adoption is purely statutory and had no place in the common law as pointed out by the trial court, our statutes have from earliest times provided for it in some form. Prior to 19'27, when the present procedure was provided, no judicial proceeding was required. Adoption was based solely on consent and was consummated by contract between the proposed adopter and someone (usually the parent or parents) authorized to speak for, and able to deliver custody of, the child. The procedure was never adversary. It could not be used as a means of acquiring custody of the child but depended on custody already existing. As said by the Missouri Supreme Court in Child Saving Institute v. Knobel, 327 Mo. 609, 621, 37 S.W.2d 920, 927, 76 A. L. R. 1068: “The mere fact that respondents [proposed adopters] were financially able and morally fit to furnish the child a good home would not entitle' [1186]*1186them to take tbe child from the legal custodian without any-showing that such custodian was not properly caring for the child.”
We do not find any decision since that 1927 change in our adoption statutes in which consent and custody were lacking. If a child is not being properly cared for by the one having actual peaceable custody, and the legal custodian is unwilling to yield custody or to consent to adoption, our statutes provide ample machinery for meeting that situation. See Code sections 232.2, 232.21 and other provisions of chapter 232, Iowa Code, 1950. It cannot be met under chapter 600.
We believe our present adoption statutes still contemplate and are based on the principle of consent by someone having legal custody, even though not fully spelled out in express, mandatory language. Their affirmative provisions, properly construed, require the preliminary acquisition of legal custody in order to consummate the adoption. They provide no adversary proceeding to obtain such custody.
III. Code section 600.1 requires the adoption petition to state: “* * * if the child be an orphan the name and place of residence of its guardian, if any, and if none, of its next of kin; the name of any licensed child-placing agency as defined in chapter 238 [Code 1946 (now 1950)], to which such child has been permanently committed or released; * * * and the facts disclosing consent as required in this section and [emphasis supplied] in section 600.3 [Code 1946 (now 1950)].” Copies are to be sent to the State Department of Social Welfare or other properly designated agency.
Code section 600.2, after first requiring reference of the petition to a proper welfare agency to “investigate the conditions and antecedents of the child * * significantly — and manda-torily• — provides: “No petition shall be granted until the child shall have lived for twelve months in the proposed home. Such period of residence may be shortened by the court upon good cause shown when satisfied that the proposed home and the child are suited to each other. The state department of social welfare may * * * make a further investigation during the period of residence and a final report with recommendations to the court.” [1187]*1187(Emphasis supplied.) Compare this language with section 600.2, Code of 1946, before amendment by the Fifty-second General Assembly, chapter 281, section 2.
"We construe this as requiring a probationary residence in contemplation of adoption and as a preliminary to the decree of adoption as was assumed in In re Adoption of Cannon, 243 Iowa 828, 53 N.W.2d 877.
It will be noticed the court is authorized to shorten, not waive, the period of residence. Of course residence in the home or some other association or relationship before adoption was ever contemplated might be such “good cause” as would satisfy the court “that the proposed home and the child are suited to each other” and might permit the trial residence to be shortened. But we cannot hold it to constitute compliance with the probationary residence requirement. A right to waive is granted only in certain eases where there is a certain degree of consanguinity or the petitioner is a stepparent of the child. See last sentence of Code section 600.2.
Code section 600.3 enumerates various cases where consent of persons having lawful custody is required, e.g., parents, guardians, state institution of which the child is a ward or licensed agency to which the child has been released.
It is true the Code Editor has headed the section “Consent, when necessary.” But there is no language in the statute itself which excludes the necessity for consent in all eases where necessary to obtain custody of the child for compliance with the mandatory probationary residence provision of Code section 600.2: As already pointed out, the petition must contain the “facts disclosing consent as required in this section and in section 600.3.’.’ In other words there may be consent required by the section which is not specified in section 600.3 — consent of one in loco parentis having actual lawful custody of the child and “entitled to the rights and subject to the liabilities of an actual parent.” Gerdes v. Weiser, supra (54 Iowa 591, 593).
The opening sentence of section 600.3 defines the persons to whom it applies: “No person may. assign, relinquish, or otherwise transfer to another his rights or duties with respect [1188]*1188to the permanent care or custody of a child under fourteen years of age except in accordance with this chapter.”
The clear purpose of this language is to abolish the former procedure, or method of adoption by mere filing of contract or articles of adoption by the contracting parties. It does not purport to cover all cases where consent is necessary to consummate the judicial adoption, though the editorial title might give that impression.
IV. Code section '600.4 fits into the construction we give the statutes: “When the parents of any minor child are dead or have abandoned him, and he has no guardian in the state, the court may order such notice of a hearing on such petition as he may determine or such notice may be waived. The court shall provide for such hearings * * * as may be necessary and shall prescribe notice thereof. * #
The last sentence quoted is a part of what was added to the section in 19'47. Even before that time it was held the court had no jurisdiction to grant adoption of an alleged abandoned child without notice. Pitzenberger v. Schnack, 215 Iowa 466, 245 N.W. 713. In that case the adoption granted without notice to the mother (alleged to have abandoned her illegitimate child) was set aside upon her petition. It was held she could not be divested of her natural custodial right without opportunity to be heard.
Here the stepfather claims custodial rights as one in loco parentis. Though, as we have said, adoption is purely statutory the law defining custodial rights has been established by judicial decisions in absence of statute. Such rights are held to be good as against strangers. Ex parte Flynn, 87 N. J. Eq. 413, 100 A. 861, 863; Wade v. State, 24 Ala. App. 176, 132 So. 71. “Doubtless it is the strict legal right of parents and those standing in loco parentis to have the custody of their infant children as against strangers.” Richards v. Collins, 45 N. J. Eq. 283, 286, 17 A. 831, 832, 14 Am. St. Rep. 726. “Only a parent or guardian can establish a superior right of custody and take the infant from the actual custodian who in fact stands in loco parentis.” Ex parte Flynn, supra, at page 417 of 87 N. J. Eq.
[1189]*1189Entirely apart from statute appellant’s rights here could not be cut off without notice to him. The adoption decree was granted without jurisdiction as to him. Whether the attack he makes on it be considered direct or collateral, he pleaded facts sufficient, if established, to sustain his right to make it. And, as we have already held, if those facts be established the adoption could not be granted.
If he was an improper person to have custody of the child, or by neglect or other conduct had forfeited his right, it was the duty of the state to act and not of private individuals who desired or were willing to adopt the child. No such situation appears here.
Y. Our conclusions make unnecessary any consideration of other contentions urged. We do not think there was any intentional fraud or deception practiced upon the trial court in obtaining the adoption decree though there was certainly unfortunate secrecy and haste. Our present adoption procedure differs so widely from that prescribed prior to 1927 that honest differences of opinion could readily arise as to the fundamental basis upon which adoption must rest.
The safeguards and provisions for determining what is for the best interests of the child, however, require the most careful observance. The statutes are framed on the theory that there must be opportunity for investigation and probationary association which can only exist when there is unquestioned custody for that purpose. We think adoption, under the statutes, cannot be consummated until such custody can be obtained.
The decision of the trial court must be reversed and the ease remanded for dismissal of the adoption proceeding unless consent and peaceful custody can be obtained. — Reversed and remanded.
Hays, C. J., and OliveR, MulroNey and Larson, JJ., concur.
Thompson, Bliss, Garfield, and WenNERstrum, JJ., dissent.