dissenting.
[¶ 58] I respectfully dissent.
[¶ 59] The district court misinterpreted the law on domestic violence. As the majority states, at ¶ 17:
The court concluded that none of the incidents between Nancy Dronen and the two older children constituted domestic violence, citing the lack of serious bodily injury, the use of a dangerous weapon, or a pattern of domestic violence.
This statement reflects a misunderstanding of the law. It confuses domestic violence with domestic violence that raises the presumption against an award of custody. And it erroneously concludes that domestic violence that does not rise to the *695level of creating the presumption against the award of custody is irrelevant.
[¶ 60] The definitions in N.D.C.C. § 14-07.1-01(2) specify:
2. “Domestic violence” includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
Section 14-09-06.2, N.D.C.C., specifies:
1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
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j. 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 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 14-07.1.
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The statutory language clearly provides that there is domestic violence that does not rise to the level of establishing the presumption and that such domestic violence is to be considered. Selzler v. Selzler, 2001 ND 138, ¶ 19, 631 N.W.2d 564 (“Evidence of domestic violence which is insufficient to trigger the presumption remains a factor to be considered in determining a child’s best interest under N.D.C.C. § 14-09-06.2(1).”). The district court failed to do so.
[¶ 61] After mentioning the mother’s pinning the oldest child to the floor, the majority says, at ¶ 17, “The court also found there was no evidence of discipline problems between Nancy Dronen and the youngest child.” That language is remi*696niscent of the discredited premise in Schestler v. Schestler, 486 N.W.2d 509, 512 (N.D.1992) (“After finding that Charles had never directed violence toward Trista or Kristofer... .”).
[¶ 62] Under factor m, “Any other factors considered by the Court to be relevant to a particular child custody dispute,” the district court says, “Tim has been making disparaging remarks about Nancy in the community.” The majority says, at ¶ 18:
A district court may consider any relevant information not otherwise provided for as a factor under N.D.C.C. § 14-09-06.2(m). DesLauriers v. DesLauriers, 2002 ND 66, ¶ 17, 642 N.W.2d 892.
(Emphasis added.) Here, there is no finding to show how the alleged statements are relevant to “the best interests and welfare of the child.” There is no finding that the child was in any way aware of the alleged remarks to others.
[¶ 63] I would reverse and remand on the issue of the disputed custody.
[¶ 64] Dale V. Sandstrom