ELLSWORTH, Maine — A DNA test has confirmed what many people involved in a child custody case have suspected.
Ryan Masoner, 24, of Fort Wayne, Ind., is the biological father of a young boy living in Hancock County, according to results of the May 1 genetic test. The test indicates samples were collected April 17 from Masoner and on April 20 from the two-year, nine-month-old boy, who goes by the name of Tobias.
The results of the test show a 99.998 percentage probability that Masoner is the boy’s father, according to a copy of the DNA test report.
The boy’s biological mother gave birth to the boy in September 2009 but kept his existence a secret from Masoner for several months, according to a recent law court decision on the case. Court documents indicate that at some point during her pregnancy she told Masoner he might be the father and that she planned to have an abortion.
A Hancock County couple that is friends with the boy’s mother was granted temporary guardianship of the boy in Hancock County Probate Court in December 2009. Since January 2010, when the boy’s mother told him she had given birth to his son, Masoner has been trying to win custody of the boy in the county’s probate court.
Masoner’s mother, Tiffeny Masoner, said recently that she hopes the test results will hasten the the Hancock County Probate Court custody case in favor of her son. The county probate court terminated her son’s parental rights with Tobias in March 2011, but the law Court decision this past March vacated that decision.
Tiffeny Masoner said her family is eager to win custody of Tobias so he can come live with them in Indiana. She said they have been publicly vocal about their situation because they feel that have been unfairly deprived of their rights to raise the boy.
“What do we have to lose?” she said recently. “We’re not going to stand back and let this happen. He’s Ryan’s biological son and our biological grandson.”
Tiffeny Masoner pointed out that the law court decision indicated that, if DNA tests prove that her son is Tobias’ father, the probate court, in the words of the law court, “must immediately reconsider the guardianship it ordered in 2009.” The probate court awarded temporary guardianship after the biological mother had told the court she didn’t know who the father was.
Tiffeny Masoner said the probate court has not yet scheduled a hearing to reconsider the matter.
In a footnote, the law court order suggests that the probate court judge could have terminated guardianship already.
“The mother represented in her first four affidavits that the child’s father was unknown. There is now no dispute that she believed [Masoner] to be the father, and informed him and the court of that fact just weeks after filing her affidavit [in the fall of 2009].
“When, in January of 2010, the court realized that the father had been identified,” the footnote continues, “it could have terminated the guardianship because it was based on the fraud or misrepresentation of the mother.”
In the same footnote, the law court decision indicates that state law sets a limit on how long a temporary guardianship can last. By statute, “the authority of a temporary guardianship may not last longer than six months with some exceptions not applicable here,” the footnote reads.
In March 2011 the probate court judge, James Patterson, terminated Masoner’s parental rights to Tobias after he determined, according to the law court decision, that Masoner “failed to carry his burden of proving that he is able to take responsibility for [Tobias] within a time reasonably calculated to meet the child’s needs” and failed to establish that “a declaration of his parental rights will be in the child’s best interest.”
The law court, however, disagreed and on March 29 of this year vacated Patterson’s decision. The law court said Patterson relied primarily on Masoner’s financial situation and “immaturity” to determine whether he was fit to care for his son.
“These factors were not a proper basis to find [Masoner] an unfit parent,” the law court decision states. “Socioeconomic status or a finding that a parent is less financially stable than potential guardians is not the type of finding that renders a parent unfit as a matter of law unless it is also determined that he is unable or unwilling to ensure that the child’s basic needs are met.”
Bangor attorney Amy Faircloth, who represents the Hancock County couple that has guardianship of the boy, has not returned phone calls seeking comment about the case.
The Masoners’ attorney, Scott Giese of Biddeford, declined to comment in any way about the case. He said this past week that he is barred from speaking publicly about the matter because probate cases are considered confidential under state law.
Kenneth Altshuler, a Portland attorney who is not involved in the case but who does have extensive experience in family law matters, indicated over the weekend that the law court made the right decision in vacating the probate court’s termination of Masoner’s parental rights. Comparing the relative ability of a biological parent to provide for his or her child to that of a prospective adoptive parent’s ability to provide for that same child should not be the basis of any decision about whether to terminate that biological parent’s parental rights, he wrote in response to an email inquiry from the Bangor Daily News.
“It is not which placement is best for this child,” Altshuler wrote. “A biological parent always has a superior claim for custody so long as he/she can meet the basic needs of that child. It is not based on wealth or education. It is based on the current willingness and ability, or the likely future ability, to provide this basic care.
“If a parent can provide the basic care, the parent wins over an adoptive family, even if the adoptive family was Bill Gates,” Altshuler continued. “It is NOT who is better: It is if the biological father can provide sufficient care and, if so, he wins.”
The Portland attorney said it is easy to feel empathetic with Masoner’s situation, given that Tobias was born without his knowledge. He added, however, that the Indiana man could have been more attentive to whether Tobias’ mother followed through with her professed plans to terminate the pregnancy or instead gave birth to the child.
He also said that, given Masoner’s other legal problems, Masoner has a responsibility to make himself a suitable caretaker for his biological son. He was more critical of the boy’s biological mother, however, calling her “irresponsible” and “cavalier” for her initial inability to identify the child’s father and for “not being invested enough” to raise the boy herself.
Altshuler stressed that, despite what Tobias’ biological parents have or have not done, the primary concern should be the welfare of the child, not that of his parents or adoptive parents. Transferring custody of the boy from the Hancock County couple to Masoner, he said, could have a “traumatic” effect on the child.
“There would have to be a gradual introduction and transition to minimize the trauma to the child,” Altshuler wrote. “What is universal about Maine law and the law of every state, is that the welfare of the child is paramount. It is the most important factor in every case, every situation, every set of facts.”
Tiffeny Masoner said that she understands that her grandson’s needs are the most important factor to consider but she said those needs can best be met if Tobias is allowed to live with his biological father and extended family in Indiana. Despite the shroud of confidentiality that surrounds her grandson’s situation, she said, she believes the public should be aware of what is happening. She said she does not think probate officials in Hancock County have handled the case properly.
“The truth needs to come out,” Masoner said.
Follow BDN reporter Bill Trotter on Twitter at @billtrotter.