The majority adequately sets forth the relevant facts; however, I believe the following dates warrant reiteration. On August 25, 1995, appellant and Rhonda Coker were married. On December 10, 1996, appellant filed a petition to adopt his stepson, and on December 12, 1996, an interlocutory decree of adoption was entered. On April 3, 1997, appellant’s wife filed a petition for divorce, and a decree of divorce was entered on June 4, 1997. Appellant filed a motion to dismiss the adoption petition on February 19, 1999.
The majority finds that a fact question exists as to whether appellant ever took custody of the minor child and warrants reversal of the probate judge’s order and a hearing on the merits of appellant’s motion. This finding is based upon the assertion appellant made in his motion to dismiss that “since the filing of this Petition and the problems with their marriage, the Petitioner has not had any contact with the minor child or been care giver for the minor child...,” and the assertion in the December 10, 1996, adoption petition that the minor child had resided with him since August 25, 1995. Such a conclusion is not supported by the record. I submit that the trial court could properly deny the motion to dismiss where the facts show that the child had resided with appellant in excess of one year prior to the entry of the interlocutory decree and for several months after the decree’s entry.
I respectfully dissent.
Jennings, J., joins in this dissent.