specially concurring.
[¶28] I concur in the result. I write separately with concern about talk of a “primary caretaker” doctrine that may be used to augment North Dakota’s statutory best interest factors, and because the majority opinion could be read as requiring spousal support as a matter of law.
[¶ 24] Jerry Harvey argues he was the primary caretaker and the district court erred in failing to recognize him as such. He further argues his status as the primary caretaker was the “tie-breaker” and the district court erred in not awarding him primary residential responsibility of the children. The majority does not directly address Jerry Harvey’s primary caretaker argument. Majority opinion at ¶¶ 9-10. I respectfully disagree that “primary caretaker” is or should be a status, factor or even consideration that independently amplifies or diminishes the best interest factors under N.D.C.C. § 14-09-06.2(1).
[¶ 25] The first reported North Dakota Supreme Court discussion of a primary caretaker is in Gravning v. Gravning, 389 N.W.2d 621 (N.D.1986). There, the Court discussed but did not adopt recognition of a primary caretaker status, explaining:
“Some courts have made the ‘primary caretaker’ factor into a presumptive rule, see Pikula v. Pikula, 374 N.W.2d 705 (Minn.1985), but in North Dakota the concept inheres in the statutory factors and has not yet been accorded elevated status. ‘[T]he observed fact that mothers of infants are most often better able to care for them than the fathers are ... is only one of the many considerations to be weighed by the trial court in making its finding as to the best interest of the child, and to be considered by us in determining whether the finding was clearly erroneous.’ Odegard v. Odegard, 259 N.W.2d [484, 486 (N.D.1977)].
“In North Dakota, parents ‘have equal rights’ as to the ‘care, custody, education, and control’ of their minor children; § 14-09-06, N.D.C.C. (1985 Supp.). ‘Between the mother and father ... there is no presumption as to who will better promote the best interests and welfare of the child;’ § 14-09-06.1, N.D.C.C.”
Gravning, at 622.
[¶ 26] Although primary caretaker has been referred to as a “factor” in decisions *665like Gravning, 389 N.W.2d at 622; Schneider v. Livingston, 543 N.W.2d 228, 230 (N.D.1996); and DesLauriers v. DesLauriers, 2002 ND 66, ¶ 8, 642 N.W.2d 892, the vast majority of North Dakota references use the phrase as a general descriptive term for the parent who most often provides direct care and supervision of a child. See, e.g., Wald v. Holmes, 2013 ND 212, ¶ 17, 839 N.W.2d 820; Frey v. Frey, 2013 ND 100, ¶ 12, 831 N.W.2d 753. The general use of the phrase is acceptable, and is in keeping with the holding in Gravning that the concept of a primary caretaker was inherent in many of the statutory factors. 389 N.W.2d at 622. However, creation of a best interest factor that adds to the legislative list in N.D.C.C. § 14-09-06.2(1) would be an improper judicial initiative. See Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993) (“It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say.”) (quoting City of Dickinson v. Thress, 69 N.D. 748, 755, 290 N.W. 653, 657 (1940)).
[¶ 27] Regarding spousal support, I agree the question should be remanded for district court findings on whether any form of spousal support is warranted based on our established law regarding need and ability to pay. Majority opinion at ¶ 20. However, to the extent the majority opinion suggests spousal support is required as a matter of law, I respectfully disagree. See Majority opinion at ¶ 20 (“[T]he facts would appear to require reservation of jurisdiction on the issue of spousal support because he has a substantially lower income, has no foreseeable ability to increase his income due to his disabilities, has potential need for support in the future, and Christine Rasmussen Harvey has a greater ability to pay support in the future.”). Rather than address the issue with our judicial thumb on the scale, I would simply remand for findings under the law.
[¶ 28] DANIEL J. CROTHERS