specially concurring.
[¶ 29] I concur in the result based on what I believe is the majority’s careful, albeit expanding, application of our precedent. By definition that precedent consists of ad hoc adjudication of third-party claims for child custody or visitation. I write separately to express concern that our body of law being propagated ad judi-cium has resulted, and will continue to result, in the judiciary being pulled deep into the legislature’s policymaking domain.
[¶ 30] We know without citation to authority that adult relationships sometimes disintegrate and that children are often involved in those relationships. We know from research that millions of children live with adults other than their parents. See Gupta-Kagan, Children, Kin, and Court: Designing Third Party Custody Policy To Protect Children, Third Parties, and Parents, 12 N.Y.U. J. Legis. & Pub. Pol’y 43 (2008). “Nearly 14 million children live with third parties — adults other than then-parents — and the number of children primarily cared for by third parties has been growing. Before determining which of the millions of third parties who are significantly involved in children’s lives should obtain custody, one must first determine which situations commonly require custody orders and thus when third parties ought to have standing to seek custody.” Id. at 48 (footnotes omitted).
[¶ 31] The North Dakota Legislature has addressed only a small part of this issue by providing for grandparent and great-grandparent visitation of an unmarried minor and for temporary custody pending adoption by the grandparent or an aunt or uncle. N.D.C.C. § 14-09-05.1(1) and N.D.C.C. § 14-10-05.2 The remainder of the law regulating non-parent custody and non-grandparent visitation has been established by judicial decision. See Edwards v. Edwards, 2010 ND 2, ¶¶ 11-13, 777 N.W.2d 606 (affirming grant of visitation rights but reversing grant of decision making authority to child’s stepfather); Clark v. Clark, 2005 ND 176, ¶¶ 16-17, 704 N.W.2d 847 (reversing grant of temporary custody to child’s grandparents where district court did not conduct best interests analysis to determine whether *663exceptional circumstances existed); In re D.P.O., 2003 ND 127, ¶ 12, 667 N.W.2d 590 (affirming grant of custody to child’s biological father despite maternal grandparents’ petition for custody); In re R.K., 2002 ND 111, ¶¶ 12-14, 646 N.W.2d 699 (reversing temporary custodial placement with maternal grandparents because no explanation given why child’s father should not be granted custody); Hamers v. Guttormson, 2000 ND 93, ¶¶ 9-10, 610 N.W.2d 758 (affirming grant of custody to child’s biological mother despite paternal grandfather’s petition for custody); Cox v. Cox, 2000 ND 144, ¶¶ 22-25, 613 N.W.2d 516 (granting custody of child to father despite mother’s argument that prospective adoptive parents had become child’s psychological parents); In re Lukens, 1998 ND 224, ¶ 8, 587 N.W.2d 141 (denying grandparents’ petition for custody of child where no psychological parent relationship was established); Goter v. Goter, 1997 ND 28, ¶¶ 9-10, 559 N.W.2d 834 (reversing grant of child’s custody to aunt and uncle because district court correctly determined aunt and uncle were child’s psychological parents but applied incorrect legal standard for placing custody of a child with a third party); In re E.J.H., 546 N.W.2d 361, 364 (N.D.1996) (declining to extend concept of psychological parent to include child’s extended family); Simons v. Gisvold, 519 N.W.2d 585, 587-88 (N.D.1994) (affirming grant of child’s custody to biological mother following biological father’s death and stepmother’s application for custody); Matter of Guardianship and Conservatorship of Nelson, 519 N.W.2d 15, 19-20 (N.D.1994) (granting custody to stepmother-figure and visitation to aunt when children’s mother abandoned them and children’s father passed away); Dinius v. Dinius, 448 N.W.2d 210, 212 (N.D.1989) (holding psychological parent concept is applicable only in custody determinations between a natural parent and another party who is not a natural parent); Worden v. Worden, 434 N.W.2d 341, 342-43 (N.D.1989) (reversing grant of child’s custody to stepfather because no exceptional circumstances warranted depriving child’s mother of custody); Patzer v. Glaser, 396 N.W.2d 740, 743—44 (N.D.1986) (granting custody of child to mother despite grandparents’ role as psychological parents); Patzer v. Glaser, 368 N.W.2d 561, 564-65 (N.D.1985) (remanding to determine if grandparents’ relationship with child constituted exceptional circumstances); In re J.K.S., 356 N.W.2d 88, 93 (N.D.1984) (affirming order of district court terminating mother’s parental rights and authorizing adoption of child by foster parents who had become psychological parents); Daley v. Gunville, 348 N.W.2d 441, 446-47 (N.D.1984) (granting custody of child to grandmother who had become psychological parent and awarding child’s mother liberal visitation); Schneider v. S.L.M., 347 N.W.2d 126, 130-31 (N.D.1984) (comparing existence of psychological parent in adoption proceeding to custody proceeding); In re Buchholz, 326 N.W.2d 203, 207 (N.D.1982) (granting custody of child to mother instead of paternal aunt and uncle because no exceptional circumstances existed justifying best interests analysis); Mansukhani v. Pailing, 318 N.W.2d 748, 755-56 (N.D.1982) (granting custody to child’s grandparents who had become psychological parents); In re D.R.J., 317 N.W.2d 391, 394 (N.D.1982) (holding exceptional circumstances exist when child’s psychological parent is pitted against child’s natural parent in custody dispute); Hust v. Hust, 295 N.W.2d 316, 322-23 (N.D.1980) (reversing temporary grant of custody to child’s grandparents because no exceptional circumstances existed where mother had properly cared for and retained physical custody of child until removal by court order); In re D.R.J., 295 N.W.2d 401, 410-11 (N.D.1980) (reversing grant of physical custody to child’s mother *664and directing district court to grant physical custody to child’s grandmother who had become psychological parent); In re J.O., 250 N.W.2d 256, 258-59 (N.D.1977) (declining to stay district court order granting temporary custody to child’s grandparents where parents could not provide stable living conditions for child); In re D.G., 246 N.W.2d 892, 895-96 (N.D.1976) (awarding custody of child to maternal grandparents who had become psychological parents).
[¶ 32] Research indicates North Dakota is in the minority of jurisdictions that judicially recognize third-party custody or visitation claims absent legislation. See In re Marriage of Rudsell, 291 Ill.App.3d 626, 225 Ill.Dec. 736, 684 N.E.2d 421, 426 (1997) (“A third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child’s best interests that the third party be awarded the care, custody and control of the minor.”) (emphasis in original); Montgomery County Dept. of Social Servs. v. Sanders, 38 Md.App. 406, 381 A.2d 1154, 1161 (Md.Ct.Spec.App.1977) (“When the dispute is between a biological parent and a third party, it is presumed that the child’s best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child.”); Tubwon v. Weisberg, 394 N.W.2d 601, 603 (Minn.Ct.App.1986) (“In determining custody of MKT, the court cited Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971), which establishes the standard for awarding custody to third parties over the objection of a biological parent.”); In re Guardianship of Lavone M., 9 Neb.App. 245, 610 N.W.2d 29, 40 (2000) (“A court may not properly deprive a biological or adoptive parent of the custody of the minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right; neither can a court deprive a parent of the custody of a child merely because the court reasonably believes that some other person could better provide for the child.”); Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179, 1183 (1996) (“Once the superior court has acquired jurisdiction over a custody proceeding between unwed natural parents, it may use its parens patriae power to decide whether the best interests of the child warrants the intervention of a stepfather as an appropriate party in the custody determination.”); K.B. v. J.R., 26 Misc.3d 465, 887 N.Y.S.2d 516, 521 (2009) (“Intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child.”); McDonald v. Wrigley, 870 P.2d 777, 779 (Okla.1994) (“But courts have long held that statutory language similar to that in § 108 and § 112 is sufficient for a divorce court to award custody of a minor child to a third party when the parents are unfit.”); Jacob v. Shultz-Jacob, 923 A.2d 473, 477 (Pa.Super.Ct.2007) (“Our courts have long held that ‘[the] rights and liabilities arising out of that relation [in loco parentis] are, as the words imply, exactly the same as between parent and child.’ ”); Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162, 167 (S.C.Ct.App.2006) (“The notion of a psychological parent or de facto parent was first recognized *665by the South Carolina Supreme Court in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989). In Moore, the supreme court found that although a psychological parent-child relationship existed between the child and his unrelated custodians, such a bond was inadequate to support awarding permanent custody to the custodians where the biological parent was fit.”); and Randy A.J. v. Norma I.J., 2002 WI App 307, ¶ 17, 259 Wis.2d 120, 655 N.W.2d 195 (“Wisconsin has recognized the equitable parent doctrine. See J.J. v. R.J., 162 Wis.2d 420, 426-30, 469 N.W.2d 877 (Ct.App.1991). The equitable parent doctrine extends the rights and responsibilities of a natural parent to a nonbiological parent seeking custody or visitation. See id.; see also Atkinson v. Atkinson, 160 Mich.App. 601, 408 N.W.2d 516, 519 (1987). Once a court determines that a party is an equitable parent, there is no distinction between the equitable parent and any other parent; each is endowed with the same rights and responsibilities of parenthood.”).
[¶ 33] At least fifteen states and the District of Columbia have statutes regulating third-party custody or visitation issues. See Alaska Stat. § 25.24.150 (2004); Ariz. Rev.Stat. Ann. § 25-415 (2009); Cal. Fam. Code § 3041 (2007); Colo.Rev.Stat. § 14-10-123.4 (1999); Del.Code Ann. tit. 13, § 8-201 (2009); Ky.Rev.Stat. Ann. § 403.270 (2004); La. Civ.Code Ann. art. 133 (1994); Me.Rev.Stat. Ann. tit. 19-A, § 1653 (2009); Mass. Gen. Laws Ann. ch. 208, § 28 (1998); Miss.Code Ann. § 93-5-24 (2003); Mo. Ann. Stat. § 452.375 (2005); N.C. Gen.Stat. Ann. § 50-13.2 (2009); Or. Rev.Stat. Ann. § 109.119 (2003); S.D. Codified Laws § 25-5-29 (2002); Va.Code Ann. § 20-124.2 (2009); W. Va.Code Ann. § 48-9-103 (2001); D.C.Code § 16-831.06 (2009). The legislation from these jurisdictions runs the spectrum from single sentence statutes to entire chapters. Colo. Rev.Stat. § 14-10-123.4 (1999); D.C.Code § 16-831.06 (2009).
[¶ 34] Also in contrast to North Dakota’s case by case recognition of certain third-party custody and visitation rights, courts in at least five states have refused to recognize these claims, opting instead for legislative guidance. Nancy S. v. Michele G., 228 Cal.App.3d 831, 841, 279 Cal.Rptr. 212 (Cal.Ct.App.1991) (ruling superceded by statute); O’Dell v. O’Dell, 629 So.2d 891, 891-92 (Fla.Dist.Ct.App.1993); Petition of Ash, 507 N.W.2d 400, 402-03 (Iowa 1993); In re Hood, 252 Kan. 689, 847 P.2d 1300, 1304 (1993); In re J.M., 170 Vt. 611, 750 A.2d 442, 444 (2000). The judicial restraint exercised in those jurisdictions was aptly described by one court as follows:
“[E]xpanding the definition of a ‘parent’ in the manner advocated by appellant could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents or other close friends of the family. No matter how narrowly we might attempt to draft the definition, the fact remains that the status of individuals claiming to be parents would have to be litigated and resolution of these claims would turn on elusive factual determinations of the intent of the natural mother, the perceptions of the children, and the course of conduct of the party claiming parental status. By deferring to the Legislature in matters involving complex social and policy ramifications far beyond the facts of the particular case, we are not telling the parties that the issues they raise are unworthy of legal recognition. To the contrary, we intend only to illustrate the limitations of the courts in fashioning a comprehensive solution to such a complex and socially significant issue.”
*666Nancy S., 228 Cal.App.3d at 841, 279 Cal.Rptr. 212 (ruling superceded by statute).
[¶ 35] The legislature is the policy setting branch of government. See Downtowner, Inc. v. Acrometal Products, Inc., 347 N.W.2d 118, 124 (N.D.1984) (noting the legislature “can do studies, gather evidence, hold hearings, and come to a decision” and “broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate”) (citations and quotations omitted). The legislature and not the court is better equipped to gather broad public input and distill public preferences for handling the hard choices and complex issues involved in determining third-party custody and visitation from the many options available. See, e.g., Gupta-Kagan, Children, Kin, and Court: Designing Third Party Custody Policy To Protect Children, Third Parties, and Parents, 12 N.Y.U.J. Legis. & Pub. Pol’y 43; American Law Institute, Principles of the Law of Family Dissolution § 2.03 (2002).
[¶ 36] Setting policy through adjudication has an additional limiting factor. A court proceeding without legislative direction is left in the untenable position of building North Dakota’s body of law using only the issues raised on appeal in a particular case. Downtowner, Inc., 347 N.W.2d at 124 (stating “Courts are ill-equipped, however, to balance equities among future plaintiffs and defendants. Such forays can result in wide-ranging ramifications on society, the contemplation of which is precluded by the exigencies of deciding a particular case presented on a limited record developed by present parties .... [S]uch broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate.”) (quotation omitted). See also Cotton v. Wise, 977 S.W.2d 263, 265 (Mo.1998) (“The problem with a court-fashioned ‘equitable parent’ doctrine is that the court has to improvise, as it goes along, substantive standards and procedural rules about when legal custody may be modified, what terms and conditions may be set, and other matters that already have well-charted passageways under state statutes and related court decisions.”).
[¶ 37] Accepting case-by-case assembly of the law rather than relying on legislation means that parents, children, third parties, lawyers and the district courts will have a delayed or unanswered question about whether a third party can have custody or visitation without first showing the natural or adoptive parents are unfit. See E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, 898 (1999) (Fried, J., dissenting) (“Our imprecise, indirect and piecemeal entry into this field [ (recognizing a ‘de facto parent’) ] can only cause confusion.”). Without legislative action, we must wait for an appeal asking whether the burden of proof should be a preponderance of evidence or clear and convincing evidence. Also delayed or missing is an answer to the question whether third-party custody or visitation should be granted in the child’s best interests or whether it should be denied absent harm to the child. Finally for me but not exhaustive of the possible inquiries, present in this case but not appealed and thus left unanswered is the question what courts are supposed to do when two parents with a court ordered custody and visitation schedule are confronted by a subsequent third party request for custodial and visitation rights that will necessarily diminish the parents’ time with the child and dilute the parents’ rights to supervise and direct the child.
[¶ 38] MARY MUEHLEN MARING, J., concurs.
. This case does not involve grandparent or great-grandparent visitation. Therefore, my references to "third-party custody or visitation” does not include grandparent or great-grandparent visitation under N.D.C.C. § 14-09-05.1(1). Nor does this case involve grandparent or aunt or uncle custody pending adoption, and my references to "third-party custody or visitation” should not be considered to include situations arising under N.D.C.C. § 14-10-05. However, beyond these limitations, "third-party custody or visitation” could well include these family members and other long-term caregivers such as step-parents and spouses or partners of the children’s parent.