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239 Mich. App. 668

610 N.W.2d 231

Jack v. Jack

Michigan Court of Appeals

Decided May 4, 2000

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Michigan Court of Appeals · decided 2000-05-04

Applies MI 722 § 722.23

Decided 2000-05-04

Kelly, J.

¶1(dissenting). I respectfully dissent.

¶2The 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 *673with either parent. Likewise, I believe the court could have concluded that because the children lived with defendant, the only established custodial environment was with her. If so, its award to defendant of physical custody of the children would require affirmance because, except with regard to factor k, MCL 722.23(k); MSA 25.312(3)(k), I am satisfied that the trial court’s findings of fact with respect to each of the factors in question are not contrary to the great weight of the evidence and that although factor k favored plaintiff, any error in that regard was harmless in light of the trial court’s findings regarding the other best interest factors.

¶3I 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).

¶4I 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.

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