Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: YVONNE FERGUSON-WATKINS Ferguson-Watkins & Associates, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: RICHARD C. HERSBERGER JUDY G. HESTER Brazill Hester Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Dec 30 2010, 9:41 am

IN THE COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF C.B.: D.B., Appellant-Respondent, vs. A.C., Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 29A05-1004-JP-321

APPEAL FROM THE HAMITLON SUPERIOR COURT The Honorable Steven R. Nation, Judge The Honorable David K. Najjar, Magistrate Cause No. 29D01-0602-JP-164

December 30, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

D.B. (Mother) appeals from the trial court's order awarding A.C. (Father) sole physical and legal custody of the parties' minor child, C.B. Mother presents one issue for our review: Did the trial court abuse its discretion by awarding custody of C.B. to Father? We affirm. Mother and Father met at a bodybuilding competition in 2001 where Mother was a contestant and Father was a judge. They began dating shortly thereafter. Father has two children, ages 19 and 9, from previous relationships. Father also has a criminal history consisting of multiple forgery offenses and two counts of attempted theft. Father went by the name A.C. at the time, as he currently does, because he did not like his given name of F.B.C. At some point, Father simply chose to go by A.C. Father denied having additional aliases or that he used multiple social security numbers as alleged by Mother. When Mother and Father met, Mother was married and had two school-aged children. Mother divorced her husband and moved to Indiana to be with Father. Her children remained in Ohio with their father. In 2003, Mother claimed physical abuse at the hands of Father and obtained a protective order against him. Mother, however, immediately reunited with Father and moved with him back to Indiana. Mother gave birth to C.B. on August 20, 2005. At the time, Mother worked at GNC Nutrition Centers and Father ran a gym known as Body Double Fitness. On January 11, 2006, Mother filed for a second protective order against Father for herself and C.B., but she and C.B. continued to live with Father until the end of January 2006, when Father was served with the ex parte order.

On February 2, 2006, Father filed the instant paternity action. Father subsequently filed a petition for temporary sole custody on February 22, 2006, and the parties entered into an agreed order on March 1, 2006, in which the parties agreed that Father was C.B.'s biological Father and that Father would be C.B.'s primary caregiver. For purposes of Father's petition, the trial court ordered that a guardian ad litem (GAL) be appointed to assist in determining custody. Father continued to be self-employed and remained C.B.'s primary caregiver until December 2006 when he moved to Ohio to seek employment. C.B. remained in Indiana with Mother. In Ohio, Father eventually gained employment with Chrysler. Shortly after Father relocated to Ohio, Mother began withholding parenting time from Father and continued to thwart Father's visitation with C.B. until February 2007 when, with the help of the appointed GAL, visitation was resumed pursuant to an agreement between the parties. Father traveled 600 miles (300 miles each way) every weekend to visit C.B. Father would pay for a motel room each time and pay for all expenses during the course of the visit. Father would frequently arrive in Indianapolis on a Thursday and visit with C.B. until Saturday or Sunday. Occasionally, Father would have C.B. one week at a time. In December 2007, Mother began withholding parenting time again and continued to do so throughout the year 2008. In December 2008, the trial court ordered two overnight visits for Father and C.B. In January 2009, two weeks before the scheduled final hearing on Father's petition, Mother made allegations that Father had sexually abused C.B. to the GAL, Department of Child Services (DCS), and the Avon Lakes, Ohio police department. Mother's allegations included that Father inappropriately open-mouthed kissed C.B., that
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Father touched C.B.'s vagina, and that Father had placed a "tribal tattoo" near C.B.'s private area. Transcript at 84. Mother had C.B., who was three and a half at the time, submit to a vaginal examination and to an interview with DCS that was ultimately forwarded to the police department. Father denied all of the allegations. An investigation revealed that Father's fianc

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