In this сhild custody dispute, plaintiff appeals as of right the September 24, 1991, Grand Traverse Circuit Court order denying her motion to enroll the parties’ minor son, Robert, in a program for gifted and talented children. We vacate the trial court’s order and remand.
The parties werе divorced on May 14, 1985, and awarded "joint custody, care, control and educa *153 tion” of their children Michael, Erin, and Robert. The original divorce judgment awarded physical custody of the children to plaintiff, but the judgment was amended later to transfer physical custody to defendant. Plaintiff was awarded visitation rights.
On the Traverse City school district’s third-grade placement test, the parties’ son Robert ranked fourth of nine hundred students. Robert completed a fourth-grade curriculum as a third grader at the Old Mission School. Robert was selected to attend thе school district’s talented and gifted program, which selects children from home schools and places them with other gifted children for education.
The parties disagree over whether to enroll Robert in the program for gifted children. Plaintiff thinks that Robert’s attendancе in the program is essential for him to reach his scholastic potential. After watching Robert’s brother Michael go through the program, defendant believes that Robert would experience difficulty adjusting to the program and might narrow his focus on academics only. Unable to agree with regard to the issue, plaintiff filed a motion to order Robert into the program.
Following a hearing regarding the matter, the trial court entered its order denying plaintiffs motion. The trial court found that an established educational environment was in place and that Robert was doing well in that environment. The trial court noted the problem of transporting Robert to the school and the segregated nature of the program. In the absence of any law regarding the subject, the trial court determined that the parent who is the primаry physical custodian should make the decision. The trial court concluded that if a different standard of review was applicable, *154 then there had not been a showing that keeping Robert at his current school was not in his best interests.
On appeal, plaintiff first argues that the trial court erred in refusing to admit the deposition testimony of Karen McClatchey into evidence. McClatchey was Robert’s third-grade teacher. Plaintiff’s counsel sought to introduce the deposition testimony on the basis that McClatchey was unavailable to appear personally. The trial court refused to admit the deposition because there was no agreement of counsel and because McClatchey was not under subpoena. Defendant argues that the deposition is inadmissible because it was not takеn in compliance with the law.
Our review of a decision regarding the admissibility of depositions is limited to determining whether the trial court abused its discretion.
Bonelli v Volkswagen of America, Inc,
Generally, a deposition is considered hearsay under MRE 801(c) and is inadmissible under MRE 802.
Shields v Reddo,
*155 (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Deposition Testimony. Testimony given as a witness in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interеst, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
For purposes of this subsection only, "unavailability of a witness” also includes situations in which:
(A) The witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(B) On motion and notice, such exceptional circumstances exist as to make it desirable, in the interests of justicе, and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
By the terms of MRE 804(b)(5), deposition testimony is not excluded by the hearsay rule if: (1) the person deposed is unavailable as a witness; (2) the deposition was taken in compliance with law; and (3) in the course of the same proceeding or another proceeding, the party against whom the testimony is now offered, or in a civil action a predecessor in interest, had an opportunity and similar motive to develop the testimony by examining the witness.
In this case, we find that plaintiff did not establish the deposition’s admissibility. There appears to be no dispute that McClatchey was unavailable as a witness under MRE 804(b)(5)(A). McClatchey *156 was on vacation at the time of the hearing and was more than one hundred miles away. The third requirement of MRE 804(b)(5) was also met because the deposition was taken in the same proceeding. However, plaintiff submitted no proof at the hearing that the deposition was taken in compliance with the law. The rеcord indicates that defense counsel sent his associate to the deposition because he was unable to attend the deposition with only four days’ notice. The record does not support plaintiff’s contention that defense counsel’s associаte agreed with plaintiff’s counsel at the time of the deposition to admit the deposition transcript into evidence. Considering the facts on which the trial court acted, we decline to say there was no justification or excuse for the ruling made. Gore, supra. Thus, the court did not abuse its discretion in denying the admission of the deposition testimony of McClatchey. Bonelli, supra.
Next, plaintiff argues that the trial court erred in determining that the parent who is the primary physical custodian of a child should decide where the child goes to school when the parents аre joint custodians of the child and cannot agree concerning that issue. Plaintiff further argues that to the extent that the trial court considered the best interests of the child, it erred in its determination of the best interests of Robert under these circumstances.
MCL 722.28; MSA 25.312(8), § 8 of the Child Custody Act, рrovides:
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed unless the trial judge made findings of fact against the great weight of the evidence, or committed a palpablе abuse of discretion or a clear legal error on a major issue.
*157
In
Fletcher v Fletcher,
In accord with Beason [v Beason,435 Mich 791 ;460 NW2d 207 (1990)], this Court reviews the trial court’s findings of fact under the clearly erroneous standard. This review is not de novo. We will not reverse the dеcision of the trial court if the trial court’s view of the evidence is plausible. Otherwise, this Court will review de novo the child custody decision. However, as provided by statute, we will affirm the trial court’s decision unless the trial court committed a palpable abuse of discrеtion or a clear legal error on a major issue. Because child custody decisions are dispositional in nature, the trial court’s ultimate disposition is subject to review de novo. Id.; Schubring v Schubring,190 Mich App 468 ;476 NW2d 434 (1991).
Defendant has primary physical custody of the children, and plaintiff has physical сustody of the children for not less than 128 days each year. When a child resides with a parent, that parent decides all routine matters concerning the child. MCL 722.26a(4); MSA 25.312(6a)(4). Because the parties in this case were awarded joint custody of their children, they share the deсision-making authority with respect to the "important decisions affecting the welfare of the child.” MCL 722.26a(7) (b); MSA 25.312(6a)(7)(b). This Court has held that a trial court properly denies joint custody in a proceeding to modify the custody portion of a divorce judgment where the parties cannot agree on basic child-rearing issues, in light of the state’s interest in protecting the child’s best interests.
Fisher v Fisher,
Citing
Griffin v Griffin,
Griffin is similar to the present case where the parties have agreed through the use of joint сustody to share the decision-making authority with respect to decisions concerning the welfare of the children. However, Griffin is distinguishable by the existence of the Colorado statute that authorizes *159 the custodial parent to make child-rearing decisions in the absence of an enforceable agreement concerning the child’s education.
We are mindful of the fact that a court is usually ill-equipped to fully comprehend and act with regard to the varied everyday needs of a child in these circumstances, becausе it is somewhat of a stranger to both the child and the parents in a marital dissolution proceeding.
Von Tersch v Von Tersch,
235 Neb 263, 271;
We believe the trial court in this case clearly erred in determining that the parent who is the primary physical custodian has the authority to resolve any disputes concerning the important decisions affecting the welfare of the children. MCL 722.27(1)(c); MSA 25.312(7)(1)(c), provides that a court shall change a previous custody order only if there is clear and convincing evidence that it is in the best interests of the children. In allowing the primary physical custodian tо resolve the important disputes, a trial court might tacitly violate § 7 of the Child Custody Act.
The controlling consideration in child custody
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disputes between parents is the best interests of the children. MCL 722.25; MSA 25.312(5). Parties to a divorce judgment cannot by agreement usurp the court’s authority to determine suitable provisions for the child’s best interests.
West v West,
We agree with plaintiff that the trial court did not make specific findings concerning the best interests of Robert. A trial court must consider, evaluate, and determine each of the factors listed at MCL 722.23; MSA 25.312(3) in determining the best interests of the child.
Mann v Mann,
Believing that all relevant evidence should be before the court, we do not preclude the use of Karen McClatchey’s testimony at the new hearing in the circuit court if she is properly subpoenaed or if a new deposition is taken and introduced in conformity with the court rules.
Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.