Brett W. Woodroof vs. Nathan E. Fisher, et al.

This appeal involves a dispute between the biological father, Brett W. Woodroof, who filed a petition to establish paternity of the nine year old child, Taylor Leigh Fisher, and the stepfather, Nathan E. Fisher, with whom the child has lived since she was two years old. The trial court determined that Mr. Woodroof was the natural father and awarded him visitation rights, but did not award him custody. A review of the record indicates that Mr. Woodroof asked for custody initially in his petition to determine parentage, but subsequently withdrew his request in his amended petition, and repeatedly advised the court throughout the lengthy court proceedings that spanned sixteen months that he sought only visitation with the child, and not custody. Mr. Woodroof requested custody only at the end of the trial process, after the testimony of the medical experts and other persons had been presented, and after numerous assertions in court that he was not presently seeking custody. We hold that his request for custody came too late and therefore we affirm the judgment of the trial court and remand for further action consistent with this opinion.