¶1concurring specially.
¶2[¶ 42] I concur specially because I disagree with that part of the majority’s analysis that Jefferey argues the trial court relied on the tender years doctrine in arriving at its decision to award Sharon custody of the parties’ minor son, who was 12 years old at the time of the second amended judgment. The tender years doctrine creates a preference for the mother in a custody dispute when the children are infants, very young, or, in other words, of “tender years.”
¶3[¶ 43] Jefferey never mentions the “tender years doctrine” in his arguments. He argues that Sharon was never the primary caretaker of the minor child. He argues he also picked up the child from day care, gave him snacks, put him to bed, etc. Jefferey argues in conclusion, “As such, with the division of duties as to child care, no one person could be the primary caretaker.” He also argues that Sharon invented findings of the court that were not in Judge Holum’s memorandum opinion when she drafted the findings. Jefferey argues that the court initially did not find one parent had been the primary caretaker.
¶4[¶ 44] In this case, the trial court never mentioned “tender years” and the parties’ son was at the time of the court’s final decision more than 12 years old, hardly an infant or child of “tender years.” The trial court does conclude that Sharon has been the primary caretaker of the child and chronicles the care she has provided for him throughout his 12 years. “The role of primary caretaker is gender neutral on its face.” Leppert v. Leppert, 519 N.W.2d 287, 292 (N.D.1994).
¶5[¶ 45] We have said the role of primary caretaker is an appropriate factor to be considered in determining the best interests of a child, but it is only one factor and not controlling. See Kjelland v. Kjelland, 2000 ND 86, ¶ 15, 609 N.W.2d 100. The primary caretaker is the parent who gives the child daily nurturing, care, and support. Id.“Thus, the primary caretaker rule is distinguishable from the tender years doctrine because the father may be the primary caretaker.” Gravning v. Gravning, 389 N.W.2d 621, 625 n. 2 (N.D.1986) (Levine, J., dissenting).
¶6[¶ 46] In this case, the trial court carefully discussed all of the best interests factors and found factors (c) and (f) favored Sharon, in addition to finding Sharon is the primary caretaker of the child. See N.D.C.C. § 14-09-06.2(1)(c) and (f). There is no indication that Jefferey argued or that the trial court considered the tender years doctrine, and I, therefore, concur specially.
¶7[¶ 47] Mary Muehlen Maring.