§ 211.011, R.S.Mo. 1969. In Interest of J., 357 S.W.2d 197, 200 (Mo.App. 1962). It has also been held that the courts will give consideration to the preferences of the child. J. v. E., 417 S.W.2d 199 (Mo.App. 1967).
This is the second time the appellant's family affairs have been before this court. See In the Interest of J., Mo.App., 357 S.W.2d 197. Though neither the parties nor the issues involved were the same, the record filed in the first case is in many respects more informative than that before us now, and the question arises whether the record in the earlier case may be considered in determining the merits of this appeal. As a general rule, courts will not judicially notice the records and facts in one action in deciding another and different one, because a party is entitled to have the merits of his case reviewed upon the evidence lawfully introduced at the trial of his claim or defense in the trial court, and a reviewing court should not decide a case upon evidence which a party has had no opportunity to refute, impeach or explain. Nevertheless, exceptions are admitted, and the extent to which this general rule is strictly applied or relaxed depends largely upon considerations of expediency and justice in a particular case, as well as what it is the court undertakes to notice.
This is not required because the juvenile court with its flexible powers is better equipped to deal with their problems than the courts which deal with fixed rights and permanent status. In re J---, 357 S.W.2d 197 (Mo.App. 1962). The public policy of this state is that when jurisdiction over the person of a child has been acquired by the juvenile court for care and treatment because of parental neglect, jurisdiction may be retained, if necessary to his well-being, until the child has attained the age of twenty-one years.
This child oriented best interest concept is neither new, novel nor uncommon in the field of jurisprudence. In fact the courts of many other states employ the same or similar approach when confronted with conflicting child custody claims as exemplified by the following decisions: Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; Henry v. Janes, 222 Ark. 89, 257 S.W.2d 285; Root v. Allen, 151 Colo. 311, 377 P.2d 117; Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334; Hitchcock v. Thomason, Mun. Ct. of Appeals for D.C., 148 A.2d 458; Fielding v. Highsmith, 152 Fla. 837, 13 So.2d 208; Altmiller v. Forsman, 76 Idaho 521, 285 P.2d 1064; Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 158 N.E.2d 613; Glass v. Bailey, 233 Ind. 266, 118 N.E.2d 800; State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228; Thumma v. Hartsook, 239 Md. 38, 210 A.2d 151; In re Adoption of a Minor, 343 Mass. 292, 178 N.E.2d 264; Forbes v. Warren, 184 Miss. 526, 186 So. 325; In re J____, Mo. App., 357 S.W.2d 197; Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370; McKay v. Mitzel, N.D., 137 N.W.2d 792; Long v. McIninch, Okla., 264 P.2d 767; Commonwealth ex rel. Ruczynski v. Powers, 206 Pa. Super. 415, 212 A.2d 922; Commonwealth ex rel. Shamenek v. Allen, 179 Pa. Super. 169, 116 A.2d 336; Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627; King v. Shrum, Tex. Civ. App., 244 S.W.2d 720; Trotter v. Pollan, Tex. Civ. App., 311 S.W.2d 723; Stout v. Massie, 140 W. Va. 731, 88 S.E.2d 51; and Morris v. Jackson, 66 Wyo. 369, 212 P.2d 78. IV. Furthermore our relatively broad best interest of the child principle is not without respectable general authoritative support.
See, also, those cases cited in footnote 2 to the same effect. See (among others): In re Duncan, Mo., 365 S.W.2d 567; Testerman v. Frederich, Mo.App., 323 S.W.2d 522; Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379; In re J____, Mo.App., 357 S.W.2d 197; Bruns v. Uebel, Mo., 318 S.W.2d 324; Morris v. McGregor, Mo.App., 269 S.W.2d 171; Ex parte Archer, Mo.App., 253 S.W. 1095; Irvin v. Irvin, Mo.App., 357 S.W.2d 254; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364; Stricklin v. Richters, Mo.App., 256 S.W.2d 53; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467; S____ v. G____, Mo.App., 298 S.W.2d 67; Clark v. Clark, Mo.App., 300 S.W.2d 851; Orey v. Moller, 142 Mo. App. 579, 121 S.W. 1102; In re Cole, Mo.App., 274 S.W.2d 601; Cox v. Carapella, Mo.App., 246 S.W.2d 513. In Duncan, supra, the father had obtained the divorce and the decree (rendered by default on constructive service), with no actual hearing on his fitness or the welfare of the couple's two children, awarded their custody to the father.
It is well established that "as respects the right to custody, the natural parent has legal preference over all other persons (grandmothers included) . . . ." In re J____, 357 S.W.2d 197 (Mo.App. 1962). If the mother is employed and gone from the home as is the father, she has no more part in training and helping in the child's development than the employed father and if everything else is equal she has no better claim when custody is at issue.
Mr. and Mrs. T. have been the only parents she has ever known, and they have provided the only home she can remember. Uprooting her from these familiar surroundings, abruptly and permanently, "could result in bewilderment and emotional trauma," In re J____, Mo.App., 357 S.W.2d 197, 200-201 [6], and such a step taken unadvisedly "could have a disastrous effect on [her] future course." McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 39 [19]. Needless to say, this separation, if it takes place, will become more and more difficult as time goes by. The respondents emphasize this consideration as a reason for leaving the child where she is, but for the same reason we are strongly of the opinion that if a change of custody is to be made, it should be done now, rather than later, if it is in the child's interest to return to her mother.
rt are not to be lightly regarded or easily disturbed but that we should defer thereto unless firmly convinced that the child's welfare requires some other disposition, we accept the hereinbefore quoted findings in the order of December 24, 1965, as indicating the mother's fitness to associate with the boy at that time. However, we are moved to the parenthetical comment that, in view of the sorry connubial record of both the mother and G____ (her present husband) and their relatively recent moral misconduct, it would be crowding time to expect any court to completely disregard the past, to be comfortably assured that their professed repentance is soul-centered and their moral reformation is permanent, and to confidently conclude not only that their present home is now an altogether stable and proper one for children but also that it will continue to be. The passage of time alone can resolve those doubts and uncertainties. S____ v. G____, supra, 298 S.W.2d at 77; In re J____, Mo. App., 357 S.W.2d 197, 200; Irvin v. Irvin, Mo.App., 357 S.W.2d 254, 256. In the meantime, we are no more disposed than was the trial judge to deny the mother reasonable opportunities for association with the boy.
310(4); In re O____, Mo.App., 372 S.W.2d 512, 514(4); In re Burgess, Mo.App., 359 S.W.2d 484, 492; State v. Greer, Mo.App., 311 S.W.2d 49, 50-51(3, 4). In re J____, Mo.App., 357 S.W.2d 197, 200(3); State v. Pogue, Mo.App., 282 S.W.2d 582, 588(10). See Good v. Good, Mo.App., 384 S.W.2d 98, 101(3); C____ v. B____, Mo.App., 358 S.W.2d 454, 459(1).