dissenting.
[¶ 29] Because the district court erred as a matter of law and fact, I respectfully dissent.
[¶ 30] As declared by statute, there is no presumption that a child goes to the mother or the father. See N.D.C.C. § 14-09-29. The judicial system must not lose sight of this public policy of the State of North Dakota.
[¶ 31] The mother, Jan Teske, was twenty-two years old when she had sex with a seventeen-year-old high school student, Jeremiah Cramer. A child resulted. Cramer did not know whether the child was his or someone else’s. Tests determined Cramer was the father. He got behind in his child support payments while still in high school.
[¶ 32] The mother married child sexual predator David Thorson. She says she did not know Thorson’s history of child sexual abuse when she married him. When she learned he was a child molester, she did not leave him; instead, she gave the child to her mother to care for.
[¶ 33] After Thorson was sent to prison for child sexual abuse, she did not divorce him until she took up with Larry Desjar-lais, a convicted felon on work release. She helped Desjarlais escape from a halfway house. She fled with the fleeing felon, taking the child with them. When Desjar-lais threatened to kill the child, she took the child to her mother, dropped the child off, and resumed flight with the fleeing felon. A few days later, she married the man who had threatened to kill her child.
[¶ 34] In 2008, the mother was convicted of theft of services, while the father was convicted of possession of marijuana and paraphernalia in 2005.
[¶ 35] The father has grown up, married, and secured steady employment. When he learned that the child had been dropped off with the grandmother, he secured a court order for temporary custody. The child led a loving and stable life with the father and his family.
[¶ 36] When Desjarlais was sent back to prison, the mother again became interested in the child and again sought custody. The district court gave custody back to the mother.
[¶ 37] The district court said the child had had a stable life with the mother and a stable life with the father. The child regularly attended school when in the custody of the father. While with the mother, the child had a very poor school attendance record. The mother said that was because the child was often sick. The child said it was because the mother often would not get up in the morning to take the child to school. The district court minimized the poor attendance at school by saying the child’s grades were acceptable.
[¶ 38] The mother, an adult when she conceived the child with a child, has a consistent pattern of putting her interests and desires ahead of the best interests of the child. When it became clear that she was living with a child sexual abuser, instead of leaving him, she gave the child to her mother to care for. She then took up with a convicted felon. When he “didn’t like the restrictions” on him, she helped him in escaping and in unlawful flight. When he threatened to kill the child, the mother again gave the child to her mother to care for and then resumed the unlawful flight and married him. The mother said — during the custody proceeding — that she is going to divorce him, but there has been no divorce, and she was still wearing her wedding ring during the proceeding.
[¶ 39] What is past is prologue. See, e.g., Hentz v. Hentz, 2001 ND 69, ¶ 12, 624 *697N.W.2d 694 (citation omitted) (“Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties.”)
[¶ 40] As a matter of law, the district court erred when it ignored the fifteen months that the child was in the safe and stable home of the father before the decision. See N.D.C.C. § 14-09-06.2(l)(d); see, e.g., Bernhardt v. Harrington, 2009 ND 189, ¶ 15, 775 N.W.2d 682 (noting that factor (d) addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting).
[¶ 41] In applying the best interests factors, the district court clearly erred. See N.D.C.C. § 14-09-06.2. The choice was between a father who was still a child when his child was conceived — a father who has now grown up — and a mother who was an adult when the child was conceived and born — a mother who has never grown up. The district court either made no finding or found each factor to favor both. It could do this only by minimizing the effect of conduct (the abysmal school attendance while with the mother) or excluding conduct (living with a child molester and giving the child to her mother, and fleeing with the child with a felon who threatened to kill the child, and giving the child to her mother).
[¶ 42] As a matter of public policy in North Dakota, there is no presumption that the child goes to the mother. See N.D.C.C. § 14-09-29. As a matter of public policy, the best interests of the child must prevail. See N.D.C.C. § 14-09-06.2. I would reverse.
[¶ 43] DALE V. SANDSTROM