dissenting.
[¶ 38] I respectfully dissent. I agree with the majority that the district court erred as a matter of law when it did not consider false allegations under N.D.C.C. § 14-09-06.2(l)(i). However, I do not agree the error was harmless, and I would reverse and remand for further findings.
[¶ 39] Juanita Martin was her daughter’s primary caretaker until May 2007. Martin and Judy Harrington, the paternal grandmother, made arrangements for the child to spend the summers with Judy Harrington in Dickinson. According to the grandmother Judy Harrington, the child spent the summer with her when the child was four, five, and six years old. In 2007, the parties agreed to the same summer visitation. During the summer of 2007, Judy Harrington and Martin discussed whether the child would stay in Dickinson for the fall of 2007 and return to Bismarck during the Christmas break. Martin agreed to allow the child to start school in the fall in Dickinson. Scott Harrington was not a party to this agreement.
[¶ 40] On December 6, 2007, Scott Harrington moved for an ex parte interim order seeking interim custody of the child. In support of his motion, Harrington argued:
Because of the neglect or abandonment by her mother, [the child] has spent the past 6 months with either her father or grandmother here in Dickinson, and has enrolled in schools here. The child is in counseling to deal with issues that seem to result from the behaviors of her mother. Some trauma seems likely to have occurred.
Scott Harrington and Judy Harrington both filed affidavits to support the motion for an ex parte interim order. The district court granted the order on December 11, 2007. The affidavit of service for the ex parte interim order was dated and filed on December 17, 2007.
[¶ 41] On December 26, 2007, Martin wrote to the court requesting “that no judgment be made or placed upon the case. I am trying to get assistance and find a lawyer to respond to the motion. However, with the holiday season upon us, the availability of finding an Attorney has been difficult.” The district court received this letter on December 27, 2007, within the ten days required for her to request a hearing. On January 17, 2008, Martin sent another request to the court asking it to continue her case. The court denied her request on January 25, 2008. After obtaining counsel, Martin moved for a custody investigator. Scott Harrington resisted on the basis that the appointment of *692a custody investigator could impose a financial burden, and the court denied the motion. On October 10, 2008, the district court held a hearing to determine custody. On October 14, 2008, the district court filed its order awarding physical custody to Scott Harrington. On October 31, 2008, the district court filed its redacted findings of fact, conclusions of law and order for judgment, which incorporated its October 14, 2008, order.
[¶ 42] The majority, at ¶ 14, holds that “Martin waived her right to now claim the district court erred in temporarily placing the child with Harrington.” Although Martin did not specifically request a hearing, she did write a letter to the court within ten days of being served with the ex parte order and requested that the court not proceed until she could secure an attorney. Martin was served with the ex parte order on December 17, 2007; this was all happening close to the Christmas holidays, and she explained to the court in her letter of December 26, 2007, that she was told she would need to wait until after January 2, 2008, to get an attorney from Legal Services of North Dakota. Martin was making an attempt to comply with the court’s ex parte interim order, but was not able to secure a lawyer within the ten-day limit. She may not be able to challenge the appropriateness of the issuance of the ex parte interim order, but Martin can establish the facts that existed at the time of the issuance of that order to discredit Harrington and expose his means of obtaining custody of the minor child by false allegations under N.D.C.C. § 14-09-06.2(1)(Z).
[¶ 43] In its October 14, 2008, order, the district court states: “Adding to the Courts [sic] difficulty is the Interim Order which is based upon an Affidavit that was filled with non-factual information. I cannot stress how disappointing it is to have ‘factual representations’ made in an Affidavit which are not true.” The majority holds that the district court erred “when it found Harrington’s affidavit ‘was not made specifically under 50-25.1-02, NDCC.’ ” The majority then concludes: “Although Harrington’s allegations contained the type of harm defined in section 50-25.1-02, the district court was not required to consider them under factor (l) because the court did not consider the allegations to be false.” I disagree with the majority. Because the district court found facts in the affidavit to be false, the district court was required as a matter of law to consider them under factor (l).
[¶ 44] Scott Harrington made allegations in his affidavits regarding the type of harm under N.D.C.C. § 14 — 09—06.2(1)(Z), which requires the district court to consider “[t]he making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.” Under N.D.C.C. § 50-25.1-02(11) a “neglected child” means a deprived child as defined in N.D.C.C. ch. 27-20. Under N.D.C.C. § 27-20-02(l)(b)(l), “ ‘Abandon’ means: ... [a]s to a parent of a child in that parent’s custody: (1) To leave the child for an indefinite period without making firm and agreed plans, with the child’s immediate caregiver, for the parent’s resumption of physical custody.” Also, under N.D.C.C. § 27-20-02(8), “ ‘Deprived’ child means a child who:
a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian;
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c. Has been abandoned by the child’s parents, guardian, or other custodian;
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g. Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by section 19-03.1-22.2.”
Scott Harrington alleges in his affidavit:
Since [the child] has been in Dickinson, Juanita has seen her only a few times, primarily when her sister takes [the child] to Bismarck.... Juanita has made no indication that she wanted [the child] back (until recently as mentioned below) and has made no effort to get her.... Then because Juanita effectively abandoned [the child], she has started school here in Dickinson. (Emphasis added.)
Scott Harrington also relied on an affidavit from Judy Harrington, which includes serious allegations:
I unite principally out of concern for [the child] as I believe she has been neglected by her mother. ... [Juanita’s fiancé] grabbed her [the child] by the throat, pushed her against a wall, and held her there_[the child] had nothing to eat that night.... Juanita and [Juanita’s flaneé] had some friends come over for a party. There was alcohol and drugs at the party.... Juanita ... kicked [her fiancé] out because he was doing drugs and had gotten her hooked and she had then gotten evicted from her apartment.... [Juanita] had friends help her move but they threw away some of [the child’s] favorite things.... [Juanita] again asked me to put [the child] through school so I registered her.... When it was time to go home, Juanita took a man home with her. They [Juanita, the man, and the child] slept in one bed. (Emphasis added.)
[¶ 45] The majority acknowledges Scott Harrington’s assertion that Martin abandoned the child, and finds this assertion supported stating: “The record reflects that after Martin’s eviction in May 2007, she had minimal contact with the child through the summer because the child stayed with her grandmother in Dickinson.” The majority is essentially making its own finding of fact. I disagree with the majority. The record contains evidence the district court should have considered under factor (l).
[¶ 46] The district court did not make a finding that Martin either abandoned or neglected her daughter. The record reflects that Martin and Judy Harrington had previously arranged for the child to stay with the grandmother for three summers. In 2007, the parties made the same arrangement before Martin’s eviction. Martin testified that she never informed Judy Harrington that the child did not have a place to stay with her over the summer. Judy Harrington’s testimony indicated that Martin and the child spoke over the phone during the summer. Testimony indicates that Judy Harrington and Martin also had an agreement that the child would return to Bismarck at the end of the summer. Judy Harrington testified that when she had initially offered to enroll the child in Dickinson schools, Martin declined. Martin testified that after three months of consideration and conversations with Judy Harrington, she decided to allow Judy Harrington to enroll the child in Dickinson. Martin also testified that when she agreed to allow the child to enroll in Dickinson, Martin and Judy Harrington agreed that the child would return to Bismarck at Christmas break. Martin shopped for school supplies with the child at the beginning of August.
[¶ 47] Scott Harrington testified that during a conversation in October 2007, Martin again indicated that she would like to have the child back at Christmas break. He also testified that he told her during *694that conversation, “I don’t see why not that [the child] can go back to Bismarck.” Judy Harrington testified that the child did not live with Scott Harrington until Thanksgiving Day 2007. The record does not indicate an intent to abandon the child. Instead, the record reveals an agreement between the parties that the child would stay with Judy Harrington until the end of the summer of 2007, and then until Christmas break, respectively.
[¶48] Scott Harrington also relied on Judy Harrington’s affidavit, which included allegations of neglect, abuse of the child, drug use in the presence of the child, and mistreatment of the child that were not proven at trial. Scott Harrington was granted custody based on these two false affidavits. The district court found that the only factor that favored Scott Harrington was that he had custody since the ex parte order, and has provided a stable environment since that order. Public policy does not support acknowledging false accusations to obtain a change of custody, and then ignoring the falsity when determining the best interests of the child. The district court did not specify which facts in which affidavit it found to be false. However, evidence in the record reveals that these factual representations fall under factor (l).
[¶ 49] I agree with the majority that the district court erred as a matter of law, but disagree that the court did not consider the allegations in the affidavits to be false. The majority did not offer any basis for concluding the district court committed harmless error. An error is harmless if it does not affect the substantial rights of the parties. N.D.R.Civ.P. 61. We have stated: “Nonprejudicial mistakes by the trial court constitute harmless error and are not grounds for reversal.” Huesers v. Huesers, 1998 ND 54, ¶ 11, 574 N.W.2d 880. In this case, the error affected Martin’s right to have false information considered in the court’s analysis of the best interests of her child. That is a mistake of law affecting her substantial right to the custody of her child. If the court had considered the falsity of the affidavits, the factor could have weighed in Martin’s favor. Therefore, I would remand for the district court to make a determination under factor (l) and reweigh the best interest factors accordingly. See, e.g., Haugrose v. Anderson, 2009 ND 81, ¶ 18, 765 N.W.2d 677 (“Because our review of this case is significantly hampered by the district court’s failure to make specific, detailed findings on the relevant issues, we reverse and remand for further findings and explanation of the basis for the court’s determination.”); Huntress v. Griffey, 2002 ND 160, ¶¶ 9-10, 652 N.W.2d 351 (reversing and remanding the district court’s judgment because the district court’s findings of fact with regard to the best interests of the child were inadequate); McDowell v. McDowell, 2001 ND 176, ¶¶ 24, 38, 635 N.W.2d 139 (reversing and remanding for further findings because the Court was unable to determine what weight the district court gave to a best interest factor).
[¶ 50] I, therefore, respectfully dissent. I would reverse and remand for the court to correctly apply the law and make further findings.
[¶ 51] MARY MUEHLEN MARING