40-4-212. Best interest of child. (1) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:
     (a) the wishes of the child's parent or parents as to custody;
     (b) the wishes of the child as to a custodian;
     (c) the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who may significantly affect the child's best interest;
     (d) the child's adjustment to home, school, and community;
     (e) the mental and physical health of all individuals involved;
     (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
     (g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.
     (2) A de facto custody arrangement, in the absence of a prior custody decree, does not require the child's parent or parents to prove the factors set forth in 40-4-219.
     (3) The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
     (a) Custody should be granted to the parent who has provided most of the primary care during the child's life.
     (b) A custody action brought by a parent within 6 months after a child support action against that parent is vexatious.
     (4) The following are rebuttable presumptions:
     (a) A knowing failure to pay birth-related costs that the person is able to pay is not in the best interest of the child.
     (b) Failure to pay child support that the person is able to pay is not in the best interest of a child in need of the child support.

     History: En. 48-332 by Sec. 32, Ch. 536, L. 1975; R.C.M. 1947, 48-332; amd. Sec. 1, Ch. 379, L. 1987; amd. Sec. 1, Ch. 303, L. 1989; amd. Sec. 1, Ch. 467, L. 1995.