Paternity of Flynn, In re, Docket Nos. 66896

• Decision Date: 06 February 1984
• Docket Number: 66712 and 70113,Docket Nos. 66896
• Citation: 344 N.W.2d 352,130 Mich.App. 740
• Parties: In re PATERNITY OF Jessica Susan FLYNN. Alan CASTLE, Plaintiff-Appellant, v. Susan J. CASTLE, f/k/a Susan J. Flynn, Defendant, and David E. Flynn, Defendant-Appellee. In re CUSTODY OF Jessica Susan FLYNN. Susan J. FLYNN, a/k/a Susan J. Castle and Alan Castle, Plaintiffs-Appellants, v. David E. FLYNN, Defendant-Appellee. Susan J. FLYNN, a/k/a Susan J. Castle, Plaintiff-Appellant, v. David E. FLYNN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 352

344 N.W.2d 352

130 Mich.App. 740

In re PATERNITY OF Jessica Susan FLYNN.

Alan CASTLE, Plaintiff-Appellant, v. Susan J. CASTLE, f/k/a Susan J. Flynn, Defendant, and David E. Flynn, Defendant-Appellee.

In re CUSTODY OF Jessica Susan FLYNN.

Susan J. FLYNN, a/k/a Susan J. Castle and Alan Castle, Plaintiffs-Appellants, v. David E. FLYNN, Defendant-Appellee.

Susan J. FLYNN, a/k/a Susan J. Castle, Plaintiff-Appellant, v. David E. FLYNN, Defendant-Appellee.

Docket Nos. 66896, 66712 and 70113.

Court of Appeals of Michigan.

Submitted June 27, 1983.

Decided Dec. 5, 1983.

Rehearing Denied Jan. 18, 1984.

Released for Publication Feb. 6, 1984.

Hyman, Gurwin, Nachman, Friedman & Winkleman by Hanley M. Gurwin and Scott Bassett, Southfield, for Alan and Susan Castle.

Bruce T. Leitman, Bloomfield Hills, for David E. Flynn.

Before CYNAR, P.J., HOOD and JASON, ^* JJ.

CYNAR, Presiding Judge.

In In Re Paternity of Jessica Susan Flynn, Court of Appeals Docket No. 66896 (hereinafter the paternity action), plaintiff Alan Castle (Alan) appeals following a grant for application to leave the July 16, 1982, dismissal of his paternity petition based upon the June 9, 1982, grant of accelerated judgment to defendant David E. Flynn (David or defendant). In In re Custody of Jessica Susan Flynn, Court of Appeals Docket No. 66712 (hereinafter the custody proceeding), plaintiff Susan Flynn Castle (Susan) and Alan appeal as of right the September 1, 1982, orders denying their motions for change of custody. (Susan and Alan are also referred to as plaintiffs). In Susan J. Flynn v. David E. Flynn, Court of Appeals Docket No. 70113 (hereinafter the visitation proceeding), Susan appeals from the March 10, 1983, order denying her request for modification of the order relative to her visitation rights. By order of this Court the three cases were consolidated for consideration on appeal.

Susan and David were married on March 10, 1973. In 1975, they met Alan when they enrolled in an adult education psychology course taught by Alan. Sometime in 1976, Alan and Susan became sexually intimate. Susan continued to live with David and continued to have sexual relations with him. Susan became pregnant and on October 7, 1977, gave birth to Jessica Susan. In April of 1978, after his divorce became final, Alan moved in with the Flynn family. In August, 1978, Susan asked David for a divorce and informed him of her relationship with Alan. David remained in the home until approximately October 1, 1978, when he moved into the duplex where he currently resides. Susan, Alan and Jessica remained together. The parties arranged for informal visitation and David visited Jessica and on occasion took her overnight. Following a long Thanksgiving weekend, David refused to return Jessica to Susan's custody. Divorce proceedings were instituted and David was granted temporary custody of Jessica. In her complaint for divorce, Susan stated that, while she and David cohabited and lived together as husband and wife, Jessica Susan Flynn was born unto them. In February, 1979, temporary custody of Jessica was placed in the court and David was granted four days of visitation and custody and Susan three days. The court ordered the parties to submit to a psychological evaluation.

On April 6, 1979, Susan and Jessica left Michigan and took up residence in Bloomington, Illinois. In July, 1979, Susan and Jessica moved to Toledo, Ohio. Alan resided with them in Toledo. On July 11, 1979, David filed a counterclaim for divorce, alleging that, during the marriage, Jessica was born of the parties. The answer admitted this allegation. In November, 1979, David was granted a divorce, and permanent custody of Jessica Susan Flynn, the minor child of the parties. In March, 1980, Alan, Susan and Jessica moved to Detroit, and in September, 1981, moved to their current home in Warren, Michigan. During this time period Susan and Alan adopted the names "Jan" and "James Drewy". David became aware of Jessica's whereabouts and on April 1, 1982, obtained physical custody of the child.

On April 12, 1982, Susan and Alan married. Susan then commenced the custody proceeding by filing a petition for a change of custody. Alan commenced the paternity action by filing a complaint under the Paternity Act, seeking to be declared the biological father of Jessica. At the same time, he joined in a petition seeking custody in the custody proceeding which had been commenced by Susan. Human leukocyte antigen (HLA) blood tests were taken, pursuant to a court order in the paternity action, in June, 1982. After dismissal of the paternity action, the HLA order was transferred to the custody proceeding and the results were ordered sealed pending further court order.

Hearings were conducted on Susan and Alan's custody motions on June 9, July 16, 20, 22, August 17, 19, 20, 23 and 24, 1982. The parties stipulated that, at the time of the hearings, David had legal and physical custody of Jessica pursuant to the order in the 1979 divorce decree. It was also stipulated that, at the time of Jessica's conception, both David and Alan had sexual access to Susan.

Alan's testimony may be summarized as follows. He believed Jessica was his daughter based on her physical characteristics and resemblance to his other children. He claimed to have totally supported Jessica almost from her birth. In April of 1979, he thought Jessica was in an unhealthy and unstable situation because of the four-day/three-day custody arrangement. Although the decision to move to Illinois in April, 1979, was Susan's decision, Alan gave her money and asked his niece to help arrange accommodations, and his son provided transportation. Alan visited them almost every weekend. It was a joint decision to move to Toledo. He lived there and commuted to work in Detroit. They used the name Drewy to avoid anyone's finding out where Susan lived. He indicated that he would not exercise self-help remedies in the future and would comply with any court orders on custody and visitation. On cross-examination, Alan testified that he was married in 1958 to Barbara Castle and was divorced from her in 1978. During that time he had a sexual relationship with Mary Lou Bell from 1966 to 1981. His sexual relationship with Susan began in 1976. In retrospect, he felt that his simultaneous sexual relationships with the three women was morally wrong. He utilized the name Drewy to obtain telephone service in Toledo, Detroit and Warren. He paid all the expenses for Susan and Jessica in those cities. In response to questioning by the trial court, Alan indicated that, although it crossed his mind that Jessica was his child, it was a confusing time for him and he did not file the paternity action until after his marriage to Susan. Alan had no reason to believe that David was an unfit custodial parent. He believed, however, that Jessica needed a stable environment and that he and Susan were better able to provide that than David.

Susan's testimony may be summarized as follows. She left with Jessica in April, 1979, because she did not believe that having four extra caretakers (due to David's working schedule) was good for Jessica. David's sisters cared for Jessica when he was at work. She did not tell Jessica who her father was during the period from 1979 to 1982. She believed that Alan rather than David should have custody because of the relationship developed over the past three years, Alan's willingness and ability to provide Jessica with an education, and Alan's capability to better contribute to Jessica's growth. She indicated that she would not leave the jurisdiction again because circumstances had changed since 1979. On cross-examination, Susan testified that she adopted the name Drewy to protect herself and her child from being found. She did not believe that her past actions impacted upon her moral fitness.

David testified that in his efforts to locate Susan and Jessica he contacted the FBI, Child Find, and attempted to follow Alan and that, for the first 1 1/2 years of Jessica's life, Susan cared for Jessica during the day and they shared this responsibility after he returned from work. He had developed a strong emotional bond to Jessica during that time. He further testified that he would provide a stable home, without deceit, for Jessica, and that the results of the HLA tests would not make any difference in his attitude.

Lorraine Ousthous, a Friend of the Court worker, testified as follows concerning her recommendation that David retain custody of Jessica. Utilizing the Child Custody Act factors as a guide, she testified that Jessica had an emotional bond to all three individuals but that Alan's interaction with the child was minimal. As to the capacity and disposition of the parties to give the child love, affection and guidance, although she noted some weakness in the parenting skills of Susan and David, both had the same abilities. Jessica did not view Alan as a significant factor in her life. Alan and David were equal in their capacity to provide material and financial support for Jessica, while Susan was dependent on Alan for her support. It was her opinion that Jessica was not in a stable environment when in the care of Susan and Alan. This was based upon the numerous moves during the three-year period. Jessica did receive continuous care from Susan, but Jessica's physical and social surroundings were interrupted. David had provided a stable environment from the time he obtained custody in April, 1982. On the permanency of the proposed custodial homes, Ousthous indicated that David's home was more permanent. In her opinion, David was morally fit, while Alan and Susan were not. The physical health of all the parties was good. David had demonstrated mental stability in his past actions and behaviors and, in her opinion, Alan and Susan had not. As to Jessica's established custodial environment, Ousthous testified that Jessica adjusted well to David's home...