concurring specially.
I concur in the result reached by the majority opinion. In DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975), this court specifically rejected a contention that divided custody is erroneous per se. Unless a majority of this court is to reverse that decision and hold that divided custody1 is never a permissible order of the court, I cannot conclude that the findings of the trial court are clearly erroneous.
Justice Levine is concerned about “Poor Robert”; recent literature2 indicates society is only beginning to learn the extent of the harm to children generally as a result of divorce; hopefully the experts will also be able to learn whether divided custody *503exacerbates that harm. One might hope, perhaps piously, that “experts” and parents are as concerned about the harm to the children at the time the events in the marriage which lead to divorce occur as they are at the time the battle over legal custody rages in the courts.
We have been informed numerous times that it is for the best interest of the children to maintain a relationship with both parents. Justice Levine in her dissent cites, with apparent approval, a new study which indicates “frequent access” to children is not in their best interest when the parents are involved in “ongoing disputes.” Presumably there are ongoing disputes whenever the courts are called upon to resolve the issues of child custody. Do we then conclude that it may be in the best interest of the child to terminate the parental rights of the contestant who fails to win custody?
Nor is it a satisfactory answer to conclude that only when the parents agree and cooperate should divided custody be ordained by the courts. If the parents agree to custody and there is no reason to believe the children are deprived as a result of that agreement,3 there is no place for intervention by the courts. Section 14-05-22(1), N.D.C.C., recognizes this: “In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, ...” [Emphasis added.] Therefore, if, as the dissents appear to suggest, we are to approve divided custody only when the parents agree, we should reverse DeForest and hold divided custody is erroneous per se when ordered by the court and is permissible only when the parents agree to cooperate and do not need the courts to settle the issue of custody. We would do the children, the parents, and the trial courts a disservice to continue to give lip service to divided custody as a possible disposition in a contested custody case, but to criticize and reverse the trial court when it concludes divided custody is in the best interest of certain children when that conclusion is based on findings which cannot be said to be clearly erroneous. If the result is foreordained, regardless of the facts, let us say it. I cannot conclude that the trial court’s decision in this case was clearly erroneous.
. What constitutes "divided custody” has not been defined by this court. It is not uncommon to see custody arrangements before us in which one parent has custody of a child for the school year with the "noncustodial" parent to have "visitation” for two or three months in the summer. Although there may be disputes in these provisions, the custody arrangement has not ordinarily been defined or considered as "split" or "divided" custody which would incur the wrath, such as that of the dissenters, of those opposed to such arrangements. If three months is "divided” custody, is two months? One month? When does it become "visitation"? In the instances in which the child is of school age it is easy to consider any provision which would require the child to change homes and schools as divided custody. The definition of what is divided custody is not so easy when the child is not of school age. In the case before us the trial court awarded joint custody alternating every six months until Robert starts school. Had the trial court awarded custody of Robert to Chris for seven months with visitation of five months to Michael, we presumably would continue to consider it as "divided” custody; but would we have done so if the "visitation” was, for example, three months?
. A recent newspaper article indicates a study by Dr. Judith Wallerstein finds that recent studies reveal that the harm to children as a result of the divorce may be manifest only years later and that only now are we beginning to understand the great extent of that psychological and emotional harm.
. Although Chris alleged Michael was guilty of sexual abuse of a daughter of Chris, and succeeded in obtaining a court order restricting visitation with Robert as a result of that allegation, it is apparent from the trial judge’s written decision that he considered the allegation to be a ruse on Chris’s part in order to limit contact between Robert and Michael. I might agree with Justice Levine’s contention that divided custody should not be a tool of punishment or coercion, but neither should a party who obtains, under false pretenses, a court order limiting visitation with the other parent be rewarded for such actions. Assuming, as the authorities have suggested, that a relationship with both parents is in the best interest of the child, there is a point where the attempt by one parent to thwart that relationship is contrary to the child’s best interest. In that instance it is unjustifiably inflammatory to continue to contend that divided custody is primarily used to punish a parent for bad behavior rather than, in the child’s best interest, to foster a relationship with the other parent. If thwarting the intention of the offending parent in order that the child might have a relationship with the other parent is "punishment," so be it.