The Indiana Court of Appeals affirmed an award granting a man primary physical custody of his child with his ex-wife, as well as her daughter from a previous relationship.
Michael Fry sought primary physical custody of his child, J.F., and Teresa Dolan’s daughter, K.D., who was 3 years old when the Frys married, after Dolan was diagnosed with Huntington’s Disease, a degenerative illness that renders her incapable of taking care of the children. She was granted primary physical custody after the divorce.
The trial court granted Fry’s petition. At issue in Teresa Fry n/k/a Teresa Dolan v. Michael Fry, 64A03-1307-DR-262, is whether the trial court could have granted him custody of K.D. since he was not her biological father. The Court of Appeals affirmed, finding Fry is a de facto custodian of K.D.
“Although Michael was not obligated by the terms of the dissolution decree to support K.D. financially, he was given the right to exercise parenting time with her and he did in fact continue his parental relationship with her after the divorce until he filed his petition for emergency custody of both children when she was fourteen,” Judge Margret Robb wrote.
The judges pointed out that for nearly a year Dolan did not appeal the trial court order, instead filing motions to enforce her parental visitation rights.
“And finally, we note that this might be a different matter if K.D.’s biological father had filed the motion for relief from judgment alleging a due process violation in the proceedings which granted custody to a third party with no notice to or an opportunity for him to be heard. However, K.D.’s biological father was never mentioned by the parties, nor was the custody arrangement, if any, between him and Teresa with regard to K.D., and there is no indication of how or if this proceeding impacts him. This is not a situation where the trial court was determining custody between a custodial parent unable to care for the child, a non-custodial parent, and a third party,” Robb wrote.