Driver v. L.K.T.

665 N.E.2d 910, 1996 Ind. App. LEXIS 720, 1996 WL 285400
CourtIndiana Court of Appeals
DecidedMarch 11, 1996
DocketNo. 49A02-9506-CV-321
StatusPublished
Cited by9 cases

This text of 665 N.E.2d 910 (Driver v. L.K.T.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Driver v. L.K.T., 665 N.E.2d 910, 1996 Ind. App. LEXIS 720, 1996 WL 285400 (Ind. Ct. App. 1996).

Opinions

OPINION

FRIEDLANDER, Judge.

Kelly Driver, Jr. appeals from an order awarding custody of LK.T., the minor child of Driver and Lyris Matheny, to Matheny's former husband.

We affirm.

The facts favorable to the judgment are that Edward Matheny and Lyris Matheny were married on July 30, 1983. During the marriage, the Mathenys had two children, Cedrick and Crystal. On April 16, 1991, Edward filed a petition for legal separation, which later was converted into a dissolution action. During this time and later, Lyris exhibited signs of mental illness, including displays of bizarre behavior. Following an April 29, 1991 preliminary hearing, Edward was awarded temporary custody of Cedrick and Crystal. A short while later, Lyris was visiting in Nashville, Tennessee, and she disappeared with Crystal. Edward obtained counsel to enforce the Indiana custody order and he and the children returned to Indiana. Lyris remained in Tennessee and maintained a relationship with Driver. Lyris returned to Indiana in October, 1991, and informed Edward that she had conceived a child with Driver and that he wanted her to terminate the pregnancy. L.K.T. was born on June 5, 1992. After L.K.T.'s birth, Lyris, L.K.T., Cedric, and Crystal lived with Edward. In January, 1998, the court granted temporary custody of Cedric, Crystal, and L.K.T. to Edward.

On December 28, 19983, Driver filed a petition to intervene for the purpose of filing petitions to establish paternity of LK.T. and to seek custody or, in the alternative, visitation with LK.T. Blood tests revealed that Driver was LK.T.'s biological father and the court ruled accordingly on the petition to establish paternity. On May 31, 1994, the court dissolved the Mathenys' marriage, but took the matter of custody of LK.T. under advisement. On June 7, 1994, the court ordered that "a Home Study should be undertaken by the Indiana Family and Social Service Administration, through Interstate Compact with the Tennessee Department of Human Services of the homes of Lyris Y. Matheny and Kelly Driver, Jr., for determination as to their adequacy for custody of [LKT.]." Record at 152-53.

A custody evaluation was performed by Dr. Richard J. Lawlor, a clinical psychologist, and submitted to the court. Dr. Lawlor concluded that LK.T. had formed a "close attachment" with Edward, Cedrick, and Crystal, and that the child had "no relationship" with Driver and reacted to Driver "as a complete stranger." Record at 218. On January 24, 1995, after considering all of the evidence, including Dr. Lawlor's report, the court awarded custody of LKT. to Edward and ordered Driver to pay child support.1 Driver appeals the custody award.

A child custody determination falls within the sound discretion of the trial court and will not be disturbed absent a showing of [912]*912abuse of discretion. Matter of Guardianship of R.B., 619 N.E.2d 952 (Ind.Ct.App.1993). We will reverse only upon a determination that the custody order "is clearly erroneous and contrary to the logic and effect of the evidence." Id. at 955 (quoting Matter of Guardianship of Riley, 597 N.E.2d 995, 997 (Ind.Ct.App.1992)). When a custody determination is to be made between a natural parent and a third party, the court presumes that the parent has a superior right to eusto-dy and the nonparent seeking custody bears the burden of overcoming this presumption. In re Adoption of Infant M.D., 612 N.E.2d 1068 (Ind.Ct.App.1993), trans. denied. When making a custody determination in such cases, the child's best interest is of great importance in the court's deliberations, but it is presumed to be in the child's best interests to be placed with the natural parent. Matter of Guardianship of R.B., supra.

Driver contends that the presumption in favor of the natural parent can be overcome only upon a showing of one of three conditions, citing Kissinger v. Shoemaker, 425 N.E.2d 208 (Ind.Ct.App.1981). Those three conditions are: 1) unfitness of the natural parent; 2) long acquiescence in the child living with others; or 38) "voluntary relinquishment [to others of custody of the child] such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child." Id. at 210-11. Driver further contends that the evidence does not demonstrate unfitness, long acquiescence, or voluntary relingquishment.

In Turpen v. Turpen, 537 N.E.2d 537 (Ind.Ct.App.1989), this court rejected the "mechanical approach", id. at 540 n. 2, in evaluating evidence in custody actions. The Turpen court recognized that preeminent in the court's consideration is the best interests of the child, and that there might be reasons for preferring a nonparent over a parent which may not fit neatly into one of the three aforementioned categories. This view, ie., preeminence of the child's best interest over other considerations, was impliedly reaffirmed in Atteberry v. Atteberry, 597 N.E.2d 355 (Ind.Ct.App.1992): "Our law clearly prefers to consider the best interests of the child over the presumption that custody must be in a natural parent." Id. at 357 (quoting Hilton v. Shafford, 459 N.E.2d 744, 745 (Ind.Ct.App.1984)). Therefore, when considering the placement of custody of a child with a non-parent, as opposed to a parent, our review of the record is not limited only to determining the existence of one of the three conditions set out in Matter of Guardianship of R.B. Instead, we will presume that the trial court correctly applied the law and will consider

whether there is any evidence in favor of the trial court's determination that the presumption the interest of the child would be best served by placing him in the eusto-dy of the natural [parent] had been sufficiently rebutted by the evidence.

Turpen, supra, 537 N.E.2d at 539.

The evidence favorable to the judgment reveals Driver was aware that Lyris was pregnant with his child by October, 1991. In August, 1993, more than one year after LKT's birth, LK.T 's guardian ad litem, Marya Jones Lee, filed a report concerning custody of L.K.T. Lee had spoken with Driver and reported that he "expressed some interest in the minor child, but throughout the course of the conversation [Driver] indicated that that interest was based on recent contact he had had with Lyris Matheny who indicated that he could help her get the child back." Record at 211. Lee contacted Driver to inform him that he could file a petition to establish paternity, but Driver did not return her phone calls or respond to further communication concerning the child. Lee recommended that Edward be given custody of L KT.

At the time of the custody determination, LKT. was approximately two years old and had lived with Edward since birth. In observing LK.T.'s interaction with Cedrick and Crystal, Dr. Lawlor described LK.T.'s behavior as "delightful." Record at 217. He noted that LK.T. "was talkative, spontaneous, giggled a lot, and was at times appropriately petulant with the two older children." Id.

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665 N.E.2d 910, 1996 Ind. App. LEXIS 720, 1996 WL 285400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driver-v-lkt-indctapp-1996.