Custody; Whether testimony was inadmissible hearsay; MRE 801(c); Harmless error; Established custodial environment (ECE); MCL 722.27(1)(c); Applicable evidentiary standard; Kuebler v Kuebler; Findings on the statutory best-interest factors (MCL 722.23); Factors (b), (c), (d), (e), (f), (h), (j), & (k)

The court held that while the trial court erred in admitting certain testimony, the error was harmless, and that it correctly applied the clear-and-convincing evidence standard in this custody dispute. Further, the trial court’s findings on the challenged statutory best-interest factors were not against the great weight of the evidence. Thus, the court affirmed the trial court’s order affirming the referee’s recommendations to grant plaintiff-mother primary physical custody and both parties joint legal custody of their child, and establishing a parenting-time schedule. As to the hearsay issue, defendant-father “first introduced the idea of plaintiff’s belief that [the child] suffered from autism. Certainly, plaintiff’s subsequent testimony in response as to her state of mind and personal knowledge on the issue of her son’s potential medical diagnoses is relevant to the best interest factors in this case, specifically MCL 722.23(c), because it pertained to [her] capacity and disposition to provide the child with medical care and other needs. Her testimony in that regard was not hearsay under MRE 801(c) because it was admitted for a proper nonhearsay purpose: [she] made the statement while testifying at the hearing, i.e., she testified why she believed [the child] had autism and how that impacted her parenting.” As this testimony “was both relevant and not hearsay,” it was admissible. “Defendant also first introduced evidence of whether [the child] had been diagnosed with autism when he examined his first witness” on that issue. A documented autism diagnosis “would be relevant to this child custody matter” but the assertion that he “was, in fact, diagnosed by a qualified medical professional with autism was hearsay to the extent it was offered to prove that fact.” The court found that the “trial court erred, in part, by overruling defendant’s objection to plaintiff’s statement that [the child] was diagnosed by a psychiatrist with autism without additional evidence” and it erred in finding that the child was diagnosed with autism. But the court held that the error was harmless. The trial court only made “one finding of fact against defendant” as to the autism diagnosis, related to factor (c), and that factor “favored plaintiff even without the autism diagnosis finding.” The court also found that the determinations on all the challenged factors ((b), (c), (d), (e), (f), (h), (j), and (k)) were not against the great weight of the evidence.