dissenting.
I respectfully dissent. In my view, the trial court correctly understood and applied the law in changing custody and in granting permission for the children to reside with their mother nearby in South Dakota.
The trial court determined that the father had not performed “adequately” in “rearing and nurturing” the children, and that the mother had demonstrated that she would “excel” in doing so.
The court finds more growth potential for the children with the mother than has been demonstrated by the father these past two years. Rearing and nurturing are more than bathing, feeding and clothing. He has performed the latter functions adequately. However, the court finds the mother can excel in the former.
In view of these express findings, I cannot agree with the majority that the trial court “did not find [the father] incapable or unable to perform his parental functions adequately.”
Parenting is “more than bathing, feeding and clothing,” as the trial court ruled. Improved educational instruction, religious training, and medical care are factors for a trial court to consider in determining whether existing custody adversely affects the children. Von Bank v. Von Bank, 443 N.W.2d 618 (N.D.1989). In Von Bank, we affirmed a change of custody of a child from her mother to her father when the trial court found that the father “appeared better able to monitor and meet [the child’s] educational and health needs,” and that “the better and more caring environment for [the child] was with [her father].” 443 N.W.2d at 621. See also Ebertz v. Ebertz, 338 N.W.2d 651 (N.D.1983). As in Von Bank and Ebertz, I believe the trial court here fairly considered and applied relevant factors.
As one example, Shawna testified that Ryan and Sarah were not “progressing” in their educational and emotional development because Tim did little or nothing to contribute to their “intellectual progress” by playing games with them or by reading to them. Shawna also testified that she was not “allowed to go to church” while she was married to Tim, and that Tim’s attitude about his children attending church and developing educationally has “remained the same” as before the divorce. Dr. Patterson, a licensed psychologist, opined that one of Shawna’s strengths was “her understanding of the developmental needs of her children.” Under NDRCivP 52(a), we should give due regard “to the opportunity of the trial court to judge the credibility of the witnesses.”
The majority, in n. 3, discounts the trial court’s finding that “for whatever reason, the father has treated the children unequally solely because of their sex difference.” The majority reweighs evidence of one illustrative incident and rejects the finding. In view of other similar evidence about Tim’s “controlling” attitude towards women and his children, continuing an attitude that contributed to his separation from Shawna, I think it is wrong for us to reweigh this evidence.
The majority says that custody should not be changed because their mother “may be able to give them moderately better surroundings.” While I agree with that principle, as I did in authoring Orke v. Olson, 411 N.W.2d 97 (N.D.1987), I do not agree that this is such a case. Rather, as in Von Bank and Ebertz, these children are not progressing satisfactorily, and the trial court found that they were adversely affected. While Timothy has been doing “reasonably well,” as the majority observes, in bathing, feeding, and clothing his children, his “rearing and nurturing” has flagged. The trial court found his efforts deficient. So should we.
For these reasons, I would affirm the trial court’s change of custody.