concurring in part and dissenting in part.
[¶24] I concur in parts II and III A and, respectfully, dissent to parts III B and III C of the majority opinion. I am of the opinion the trial court clearly erred in applying the law to the facts of this case as it pertained to Bartley Burns’s use of force on the child, and the trial court misapplied factor (d). I would reverse and remand for the trial court to properly apply the law pertaining to abuse of a child to the facts of this case and to perform a proper analysis of factor (d) and factor (j).
I
[¶ 25] The majority, at ¶ 14, concludes “the district court’s finding factor (j) favored Cynthia Burns did not require that she be awarded custody of the children.” In Hill v. Weber, 1999 ND 74, ¶ 1, 592 N.W.2d 585, our Court was asked to determine whether the trial court’s “finding that the father repeatedly struck his older daughter on the head with enough force to create a substantial risk of serious bodily injury” was clearly erroneous. We concluded the trial court was not clearly erroneous and affirmed the judgment. Id. In Hill, 1999 ND 74, ¶3, 592 N.W.2d 585, there were facts similar to those in this case:
[T]he older daughter, age 14, alleged abuse, testifying she was often struck on the back of her head by her father and told to get her duties done. She further testified her father would hit her as hard as he could with an open hand, and that he had been doing it since before the divorce. The mother testified the father had a history of abusing her and the children.
Our Court analyzed the trial court’s findings and concluded:
The district court found the violence against the older daughter created a threat to her health and safety. We agree with the trial court, if the criteria of [N.D.C.C. § 14 — 09—06.6(3)(b)] are met, there is as a matter of law a material change of circumstances that warrants a change of custody under [N.D.C.C. § 14-09-06.6(6)].
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Here, the older daughter testified her father repeatedly hit her as hard as he *252could on the back of her head with an open hand, causing her pain. Although there was contrary testimony, the district court found the older daughter more credible than the other witnesses. The district court noted the general state of human knowledge that repeated hits to the head may cause injury. See Arthur C. Roberts, The Value of Outcome Studies in Litigating Closed Head Injury Cases, 30 Trauma 39 (1988). The finding of fact is supported by the testimony of the older daughter, and we will not substitute our judgment on credibility for that of the district court. The finding of fact is not clearly erroneous.
Id. at ¶¶ 11,13.
[¶ 26] Despite Hill, at ¶ 13, in which our Court acknowledged the injury repeated hits to the head may cause, the majority claims, at ¶ 14, “[pjarents have the right to use reasonable force to discipline their children.” The majority continues, at ¶ 14, “[h]ere, the district court’s finding that Bartley Burns was not a ‘danger ’ to his children is an implicit finding that he caused no ‘serious physical harm’ to the children by his disciplinary measures, and there is no evidence in the record to support a finding of ‘serious physical harm.’” The majority concludes, at ¶ 14, “[b]ecause the evidence was insufficient to trigger the domestic violence presumption, the court properly gave factor (j) equal consideration with the other applicable factors under N.D.C.C. § 14-09-06.2(1) when determining the best interests of the children.” Repeatedly “knuckling” the back of a child’s head goes beyond reasonable force. I fail to comprehend how the same Court that concluded repeated hits to the head may cause injury and are a threat to the health and safety of a child, can now claim repeatedly “knuckling” the back of a child’s head does not present serious physical harm. I am of the opinion the trial court clearly erred in applying the law to the facts of this case. The trial court should reconsider the weight of this factor on a remand.
II
[¶ 27] The trial court found factor (d) of N.D.C.C. § 14-09-06.2(1) favored awarding custody to Bartley Burns. The majority, at ¶ 20, concludes the trial court’s finding that factor (d) favored Bart-ley Burns is not clearly erroneous. Factor (d) requires the trial court’s consideration of the “length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14-09-06.2(l)(d).
[¶ 28] In Schmidt v. Schmidt, 2003 ND 55, ¶¶ 26, 27, 660 N.W.2d 196 (Maring, J., concurring), I wrote:
I continue to be of the opinion that when applying factor (d), a trial court must examine not only past stability of environment, including a consideration of place or physical setting, but a consideration of the prior family unit and its lifestyle as part of that setting. See Stoppler v. Stoppler, 2001 ND 148, ¶¶ 26-31, 633 N.W.2d 142 (Maring, J., concurring in part and dissenting in part). This includes consideration of the continuity of the relationship with the parent who had cared for the children on a daily basis. Id. at ¶ 28.
... I continue to be troubled by the emphasis on the continuity of the child’s physical setting over the importance of the continuity of the parent-child relationship in both factors (d) and (e). I am concerned we still have vestiges of the philosophy that the parent who receives the home where the children have grown up will get custody of the children.
*253Four years later, the concerns I expressed in Schmidt still exist. The trial court’s analysis of factor (d) focused on the child’s physical home setting in Surrey and the child’s school in Surrey, concluding “[i]f the goal is to maintain continuity in these children’s lives, it appears that this goal would be better served by allowing the children to remain in the former family home near Surrey.” The trial court made no mention of the child’s need for continuity of the parent-child relationship and did not determine how the child’s continuity of his relationship with the parent who had cared for him on a daily basis would be affected by its decision. The trial court made clear that the child’s familiarity with Surrey and the Surrey school were more important than the continuity of the child’s relationship with his mother. The trial court seemed to say, and the majority supports that, “all things being equal,” the parent who receives the marital home receives the child, even if that home environment included inappropriate discipline for a young disabled child such as repeated “knuckling” of the back of the child’s head.
[¶ 29] Further, the majority, at ¶ 20, notes that “being a child’s primary caretaker does not guarantee a custody award in a divorce action because the primary caretaker rule has not been given presumptive status in this state.” However, I am of the opinion the trial court completely ignored the issue of who was the primary caretaker and failed to include this consideration in its analysis of factor (d). Under factor (d), the trial court is to examine the past relationship between the parent and child, including who took care of the child’s basic and, in this case, special needs.
[¶30] I am of the opinion the trial court erred on its application of factor (d). The judgment should be reversed and remanded for a proper analysis of factor (d) and factor (j).
[¶ 31] MARY MUEHLEN MARING, J.