In Re Paternity of LKT

665 N.E.2d 910, 1996 WL 285400
CourtIndiana Court of Appeals
DecidedMay 16, 1996
Docket49A02-9506-CV-321
StatusPublished

This text of 665 N.E.2d 910 (In Re Paternity of LKT) 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
In Re Paternity of LKT, 665 N.E.2d 910, 1996 WL 285400 (Ind. Ct. App. 1996).

Opinion

665 N.E.2d 910 (1996)

In re the PATERNITY OF L.K.T., Minor Child.
Kelly DRIVER, Jr., Appellant-Petitioner,
v.
L.K.T., Minor Child, Tanya Walton Pratt, Guardian Ad Litem for L.K.T., a Minor Child, and Edward C. Matheny and Lyris Y. Matheny, Appellees-Respondents.

No. 49A02-9506-CV-321.

Court of Appeals of Indiana.

March 11, 1996.
Publication Ordered May 16, 1996.

*911 Richard D. Gilroy, Indianapolis, for appellant.

Audrey K. Grossman, Treacy Grossman & Sullivan, Indianapolis, for appellees.

OPINION

FRIEDLANDER, Judge.

Kelly Driver, Jr. appeals from an order awarding custody of L.K.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, 1993, the court granted temporary custody of Cedric, Crystal, and L.K.T. to Edward.

On December 28, 1993, Driver filed a petition to intervene for the purpose of filing petitions to establish paternity of L.K.T. and to seek custody or, in the alternative, visitation with L.K.T. Blood tests revealed that Driver was L.K.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 L.K.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 [L.K.T.]." 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 L.K.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 L.K.T. 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 abuse 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 custody 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 3) "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 relinquishment.

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, i.e., 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 nonparent, 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 custody 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 L.K.T.'s birth, L.K.T.'s guardian ad litem, Marya Jones Lee, filed a report concerning custody of L.K.T.

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Related

Marriage of Atteberry v. Atteberry
597 N.E.2d 355 (Indiana Court of Appeals, 1992)
Matter of Guardianship of Riley
597 N.E.2d 995 (Indiana Court of Appeals, 1992)
Turpen v. Turpen
537 N.E.2d 537 (Indiana Court of Appeals, 1989)
Kissinger v. Shoemaker
425 N.E.2d 208 (Indiana Court of Appeals, 1981)
Matter of Guardianship of RB
619 N.E.2d 952 (Indiana Court of Appeals, 1993)
Hilton v. Shafford
459 N.E.2d 744 (Indiana Court of Appeals, 1984)
McIntyre v. Medaris
612 N.E.2d 1068 (Indiana Court of Appeals, 1993)
Driver v. L.K.T.
665 N.E.2d 910 (Indiana Court of Appeals, 1996)

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