Jack v. Jack
Jack v. Jack
Dissenting Opinion
(dissenting). I respectfully dissent.
The majority finds that there is sufficient information on the record for this Court to make its own determination of the custody issue by review de novo. Although it is true that the record indicates that the children relied on both parents to provide them with guidance, discipline, and the necessities of life, I believe this Court is too remote a tribunal to inteipret the nuances that always emanate from determinations of the credibility of parties and their children, let alone interviews regarding custody matters and preferences of the children. I would prefer to remand and have the trial court determine the question of custodial environment because I believe that, on the present record, the court could have made a conclusion that no established custodial environment existed
I also believe that the trial court erred in admitting the psychological report prepared by Dr. Andrew Maltz because plaintiff did object to the admission of the psychologist’s report when defense counsel attempted to question defendant regarding the psychologist’s conclusions. Although plaintiff’s attorney indicated that he had “no problem with the court reviewing Dr. Maltz’s report,” that certainly did not constitute a waiver of his objection. The psychologist did not testify, and, without a stipulation by both parties that the report should be admitted, the report was not admissible. Baluch v Baluch, 180 Mich App 689, 693; 447 NW2d 775 (1989); Petoskey v Kolas, 147 Mich App 487, 490; 382 NW2d 804 (1985).
I would remand for a determination of custodial environment by the trial court, but bar the admission of the psychological report prepared by Dr. Maltz unless he testifies or the parties stipulate its admissibility.
Opinion of the Court
Plaintiff appeals as of right from the parties’ judgment of divorce. We reverse and remand.
The parties are the parents of two minor children, Erin, bom on November 30, 1992, and Adam, bom on June 26, 1995. The parties separated in early 1998. On February 20, 1998, a stipulated order was entered granting both temporary physical and legal custody of
Plaintiff first argues that the trial court committed error requiring reversal by failing to determine whether an established custodial environment existed. We agree. MCL 722.27(l)(c); MSA 25.312(7)(l)(c) states that the circuit court
shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
Because a temporary custody order existed, the trial court was required to make a finding regarding the issue whether an established custodial environment existed. Bowers v Bowers, 190 Mich App 51, 53-54; 475 NW2d 394 (1991); DeVries v De Vries, 163 Mich App 266, 270; 413 NW2d 764 (1987). “Where a trial court fails to make a finding regarding the existence of a custodial environment, this Court will remand for a finding unless there is sufficient information in the record for this Court to make its own determination of this issue by de novo review.” Thames v Thames, 191 Mich App 299, 304; 477 NW2d 496 (1991). Accord Bowers, supra at 53-54.
Finally, we reject plaintiff’s argument that the trial court erred in admitting the psychological report prepared by Dr. Andrew Maltz in connection with the custody dispute in this matter. At plaintiff’s request, the trial court ordered that “the parties and the two minor children undergo a psychological evaluation with Dr. Andrew Maltz . . . with a report to be submit
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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