dissenting.
[¶ 23] I respectfully dissent. I believe the trial court did adequately set forth the standard for evaluating the impact of domestic violence on a child custody determination and properly applied that standard. Our Court’s standard for evaluating the impact domestic violence committed by both parents has on a child custody determination requires:
[T]hat if domestic violence has been committed by both parents, the trial court measure the amount and extent of domestic violence inflicted by both parents. If the amount and extent of domestic violence inflicted by one parent is significantly greater than that inflicted by the other, the statutory presumption against awarding custody to the perpetrator will apply only to the parent who has inflicted the greater domestic violence, and will not apply to the parent who has inflicted the lesser. However, if the trial court finds that the amount and extent of the violence inflicted by one parent is roughly proportional to the violence inflicted by the other parent, and both parents are otherwise found to be fit parents, the presumption against awarding custody to either perpetrating parent ceases to exist. In such a case, the trial court is not bound by any presumption, but may consider the remaining customary best-interests factors in making its custody decision.
Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995) (footnote omitted).
[¶24] The majority argues that because our statute governing the impact of domestic violence was amended in 1997, this amendment altered our standard for dealing with situations when domestic violence is committed by both parents. Instead of following our long-settled Krank standard, the majority would have the presumption against custody arise against *560both parents whenever evidence is present of domestic violence sufficient to trigger the presumption under N.D.C.C. § 14-09-06.2(l)(j) for both parents. The effective impact of such a change would be to require that custody of a child is awarded to a third person whenever the statutory presumption against both parents arises under N.D.C.C. § 14-09-06.2(l)(j), unless one of the parents is able to present clear and convincing evidence that rebuts the presumption. This Court has set a very high threshold for overcoming the presumption. This would be the result even in situations when the levels of domestic violence perpetrated by both parents are grossly disproportionate.
[¶ 25] The change in N.D.C.C. § 14-09-06.2(1)0) enacted in 1997 simply provides no justification for such a change:
Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this evidence combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter H-07.1.
1997 N.D. Sess. Laws ch. 147, § 2.
[¶ 26] Support for the majority’s sea change in our child custody jurisprudence is also non-existent in the legislative history, which does not indicate a departure from the Krank standard.
SB 2235 does not change the impact of domestic violence in a custody determination. What it does do, however, is to allow the court to also look for a pattern or, if a single act, the severity as well as to the proximity of the acts. When the court finds credible evidence of domestic violence the court need also examine whether there was one incident of domestic violence which resulted in serious! ] bodily injury or involved the use of a dangerous weapon, or a pattern of domestic violence, all within a reasonable time proximate to the proceeding. If violence exists through a serious single act or a pattern the presumption kicks in that the perpetrator should not have sole or joint custody. The burden to rebut the presumption is on the perpetrator. Through these changes SB 2235 does not remove domestic violence from its importance in making the custo*561dy decision, but rather sketches in its connection.
Hearing on S.B. 2235 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 27, 1997) (testimony of Sherry Mills Moore, Chair of North Dakota State Bar Association Family Law Task Force). It is also clear from the legislative history of the 1997 change that the legislature was aware of our application of N.D.C.C. § 14-09-06.2(l)(j) in the context of situations in which both parents inflict domestic violence. See Hearing on S.B. 2235, supra (memorandum of Billie Brunsoman, intern, p. 3). Yet, the legislature elected not to change the statute to address the Krank standard.
[¶ 27] We recognized that the legislature’s amendment of N.D.C.C. § 14-09-06.2(l)Cj) did not alter the Krank standard for dealing with two parents who have each committed domestic abuse. In Huesers v. Huesers, 1998 ND 54, ¶ 9, 574 N.W.2d 880, we explained:
When domestic violence has been committed by both parties, the court must measure the amount and extent of domestic violence inflicted by both. Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995). If one parent inflicts significantly greater domestic violence than the other, the presumption against custody applies only to the parent inflicting the greater violence. Id. When there is equal violence by both parents, the presumption does not apply. Id. The amended language makes no change to this required proportional analysis tuhen both parents have committed domestic violence. The court must determine which parent has committed the greater pattern of violence at times reasonably close to the divorce action.
(Emphasis added.)
[¶ 28] Today, with little explanation and no justification, the majority has suddenly decided to legislate its own new course. I cannot agree. The changes made in 1997 to N.D.C.C. § 14-09-06.2(l)(j) have been before this Court numerous times and we have never questioned the continuing validity of the Krank standard following the 1997 amendments. See Thompson v. Olson, 2006 ND 54, ¶ 16, 711 N.W.2d 226; Schumacher v. Schumacher, 1999 ND 149, ¶ 19, 598 N.W.2d 131; Reeves v. Chepulis, 1999 ND 63, ¶ 14 n. 1, 591 N.W.2d 791 (emphasis added) (stating “[w]hile section U-09-06.2(l)(j) does not specifically set forth a procedure for addressing reciprocal domestic violence, we have said the trial court must ‘measure the amount and extent of domestic violence inflicted by both parents,’ and ‘make detailed findings’ determining whether the presumption arises as to one parent or not at all”); Zimmerman v. Zimmerman, 1997 ND 182, ¶ ¶ 7-8 n. 1, 569 N.W.2d 277. Section 14-09-06.2(1)0), N.D.C.C., does not specifically provide for situations when both parents have committed domestic violence. Reeves, 1999 ND 63, ¶ 14 n. 1, 591 N.W.2d 791. We fashioned a response in Krank that reflects the concerns of the legislature and the legislature, despite clear evidence that they were aware of our response, did not see fit to chart a new course in 1997, or at any point thereafter. If support existed in the legislative history of the 1997 amendments that this Court erred in its use of the Krank standard, I might be persuaded otherwise.
[¶ 29] I would apply, as the trial court clearly did, our existing standard. Here, the trial court outlined the evidence of domestic violence committed by both parties. The trial court first established proof of a pattern of domestic violence by Giet-zen and then a single serious incident by Gabel. The trial court next outlined the N.D.C.C. § 14-09-06.2(l)(j) standard for domestic violence sufficient to give rise to *562the presumption against custody. The trial court then concluded by stating: “It appears in this case that domestic violence has been committed by both parties.” The majority believes the trial court did not make a finding that domestic violence had occurred that raised the presumption. However, if such a finding was not made, it appears the trial court proceeded to engage in superfluous verbosity by then outlining the Krank standard and concluding both committed domestic violence. Clearly, the trial court found both parties had committed domestic violence that raised the presumption. The trial court also found the level of violence committed by both parties was roughly proportional. Although not specifically stating “I find the level of violence committed by both parties to be roughly proportional,” I cannot accept, as the majority does, that the trial court would lay out the correct standard in one sentence and then ignore what it just said in the next. The trial court concluded the factor favored neither party, implying the domestic violence was proportional.
[¶ 30] The trial court also stated: “While in this case it appears that both parties have previously perpetrated domestic violence on the other, the facts of this case including the recent past behavior of the parties and their current circumstances indicate that domestic violence between the parties is unlikely to occur in the future.” This also indicates that the trial court found the level of violence perpetrated by both parties was roughly proportional, thus the presumption against custody arose against neither.
[¶ 31] By evaluating the possibility for future violence, the trial coui't is not injecting an impermissible consideration into the best-interest factors. The court merely indicated that, while the presumption has not arisen against either party, the fact of the past violence is still a consideration, as it should be. A trial court, when faced with a situation in which the presumption against custody due to domestic violence either has never arisen or has been overcome should not then be required to turn a blind eye to the fact of the violence. Section 14-09-06.2(l)(j), N.D.C.C., does not limit the trial court’s consideration of domestic violence-in a best-interests determination to only those situations when the presumption has arisen.
[¶ 32] This case involves one instance of admittedly severe and unacceptable violence committed by Gabel, and a continuing pattern of domestic violence committed by Gietzen. The majority would have a presumption against custody arise against both parents; a presumption that can only be overcome by clear and convincing evidence. This is a difficult burden for a parent to overcome and, in many cases, will result in neither parent being granted custody under the statute. In enacting its 1997 amendments, I do not believe the legislature intended to tear children from both parents and place them with a third party in every case in which both parents have committed domestic violence. Undoubtedly, situations may arise when violence is committed by both parents and placing the child with a third party will be in that child’s best interest. However, the existing Krank standard allows trial courts to do just that when the circumstances so require.
[¶ 33] I would affirm.
[¶ 34] Mary Muehlen Maring