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In Re Custody of Townsend

OPINION FILED NOVEMBER 14, 1980.

IN RE CUSTODY OF CHRISTY ELIZABETH TOWNSEND. — (GARY DEAN TOWNSEND, PETITIONER-APPELLANT,

v.

BRENDA POLING, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Macon County; the Hon. JOHN L. DAVIS, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

A singular case.

The facts underlying this custody suit are as tragic as they are complicated. And although we are without the gift of Solomon, we are compelled to reverse.

Prior to 1976, petitioner Gary Townsend was married to Judy Townsend and they had a son, Alan. At some time thereafter, Gary began to have an intimate relationship with Dorothy Salmons, who was married to George Poling. George and Dorothy had a daughter, Brenda, the intervenor in this case. In approximately March 1976, Gary learned that Dorothy was pregnant with his child. He unsuccessfully sought a divorce from Judy and then left her and began living with Dorothy in the spring of 1976. Soon thereafter, Dorothy was divorced from her husband, George. Gary lived with Dorothy for about three months but then moved back with Judy. On October 14, 1976, Christy Elizabeth Townsend — whose custody is the pivot of this appeal — was born. Even though Gary no longer lived with Dorothy at that time, he had continued to visit her up to the time of Christy's birth and in fact took Dorothy to the hospital. After Christy's birth, Gary continued to visit with Dorothy and Christy, though Dorothy and Gary's relationship deteriorated. Throughout this time Gary's wife, Judy, was aware of Gary's visits with Dorothy.

On December 11, 1978, Dorothy came to the Townsend home and shot and killed Judy. Dorothy was convicted of murder and sentenced to 30 years, and at the time of this trial she was incarcerated in the Dwight Correctional Center. From December 11, 1978, until the date of trial, Christy was under the care of her half-sister, intervenor Brenda Poling, who, along with her own daughter, Courtney, had lived with Dorothy prior to that date. At some time following December 11, 1978, Brenda, Christy, and Courtney moved into the mobile home of Brenda's father, George Poling.

Immediately after Judy's murder, Gary began his pursuit to acquire custody of Christy. He at that time was unaware of her whereabouts, but officials assured him that she was being cared for. Immediately after Dorothy's conviction for murder in April of 1979, Gary filed his petition to obtain custody. Brenda Poling, Christy's half-sister, intervened in that proceeding.

At trial, Gary presented several witnesses who testified to his close relationship with his son, Alan, his faithful attendance at his church, and his popularity with children. Gary testified that in the first six months or year of Christy's life he called on Dorothy and Christy two or three times a week. During this time, Christy came to know him as her father. He also testified concerning a spacious home that he was building and would be occupying soon.

Brenda Poling presented witnesses who testified to the close relationships between Brenda and Christy and between Courtney and Christy; Courtney and Christy are the same age. Because Dorothy went back to work soon after Christy's birth, Brenda had often had the duty of caring for Christy.

Dan Kiley, a child psychologist, had visited in Brenda's home and had seen Brenda, Courtney, and Christy in his office three or four times. He had reached the conclusion that the three shared a warm relationship. In particular, he was pleased that Brenda was taking Christy to visit her mother, Dorothy, at Dwight, and he thought that these visits would help Christy better understand her tragic background.

At the time of trial, Brenda, Christy, and Courtney were living with Brenda's father, George Poling, in his mobile home. Brenda testified that George is good with the children and that he seems to be a father figure to them. Under these living arrangements, Brenda, Christy, and Courtney all sleep in one bed in the mobile home's smaller bedroom.

Dorothy Salmons testified concerning the weekly visits that Christy makes to her at Dwight. She said that Christy always recognizes her as her mother and wants to stay with Dorothy or take Dorothy home.

In his closing argument, Christy's guardian ad litem recommended that she be placed with Brenda. The trial judge described this as one of the most difficult cases he had been involved in during his nine years on the bench. He described each party as fit and suitable to have custody of Christy but noted that Gary had never had Christy in his home as his daughter. In addition, the court took into consideration the effect the entire situation would have on Gary's son, Alan. The judge decided it was in Christy's best interest to give custody to Brenda, with Gary having visitation rights.

On appeal, Gary contends that the trial court's award of custody to Brenda was erroneous because the court did not give adequate consideration to his natural right as a parent to have custody of his own child. (In addition, he contended that the trial court's order for him to pay child support was improper; however, he waived that issue at oral argument.)

Though her life in many respects is a sad one, Christy has in her favor the fact that two people, both fit as custodians, desperately want her as their child. We agree with the trial judge in his characterization of the facts of this case: It presents us with a difficult quandary and requires that we today answer a question that could much more easily be answered in hindsight. We disagree, however, with the trial judge as to his ...


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