Maine supreme court sides with man trying to gain custody of son

ELLSWORTH, Maine — It wasn’t until January 2010, four months after the boy was born, that Ryan Masoner was told he was a father and that a couple in Hancock County had been appointed temporary guardians of his son.

The 24-year-old Fort Wayne, Ind., resident now is awaiting results of a court-ordered DNA test that will prove whether Tobias is his son, but there seems to be a general consensus among involved parties that he most likely is.

If he is, a recent Maine supreme court decision could help him regain custody of the 2½-year-old child. Late last month, the Law Court vacated a Hancock County probate court decision to terminate Masoner’s parental rights.

Because probate court proceedings and documents are not considered public in Maine, the people involved in the case are not identified by name or town of residence in the Law Court decision, except for the boy who is referred to only as ‘Tobias D.’

“I knew nothing about this,” Masoner told the Bangor Daily News recently about the September 2009 birth of his son. “I know deep down inside he’s mine.”

In January 2010, when Tobias’ mother told Masoner she had given birth to a boy in Maine four months earlier, she already had left the baby with family friends in Hancock County to act as the infant’s unofficial guardians, according to the written Law Court decision.

In November 2009, when the family friends petitioned Hancock County Probate Court to be declared the baby’s official guardians, the baby’s mother told the probate court judge she had had at least three sexual partners and did not know who the father was.

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.

Despite what she told the probate court, Tobias’ mother had concluded Masoner was the father, based on the boy’s appearance at the time of his birth, according to the Law Court decision.

In December 2009, the probate court gave legal temporary guardian status of the boy to the Hancock County couple, who also have been seeking to adopt Tobias. Masoner found out a month later that he had a son who now was living in Maine.

When he found out about his son, Masoner could not travel to Maine because he was serving an eight-month sentence in jail. He had been ordered to serve house arrest after being convicted of receiving stolen property but violated the terms of his house arrest and so had to spend time behind bars, Masoner said.

Over the next several months, while he was incarcerated, he and his parents, who own and run a masonry business in Fort Wayne, filed multiple documents with the probate court in Ellsworth, challenging the guardianship decision and seeking to establish parental rights for Masoner.

In January of 2011, after Masoner was released from jail, he traveled to Ellsworth for a hearing on whether he should be given parental rights by probate court. There, according to a recent Law Court decision, Judge James Patterson determined 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.”

Patterson’s decision effectively terminated any rights Masoner might have as Tobias’ father.

The Law Court, however, disagreed and on March 29 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.”

Masoner’s attorney, Rosemarie Giosia of Ellsworth, and the temporary guardians’ attorney, Amy Faircloth of Bangor, have not responded to multiple requests this week for comment about the case. The Bangor Daily News is not identifying Tobias’ biological mother or the boy’s temporary guardians because, aside from information provided by the Masoner family, their identities have not independently been confirmed.

Masoner said last week during a phone interview that he was “stunned” to find out Tobias’ mother had kept the boy’s existence a secret from him. He said he is upset that Tobias’ mother, who lives in Indiana, and the boy’s temporary guardians have sought to deny his rights as a father.

“I was asking myself, ‘Why would she do this?’ I’d never done anything bad to her,” Masoner said. “I’ve done nothing to these people. I don’t know why they’re doing this to me and Tobias.”

Masoner said he has met Tobias in person twice during the legal dispute, once at a McDonald’s in Bangor in January 2011 and a second time in June of that year when Tobias’ temporary guardians brought him to Fort Wayne. During the second visit, he said, his father gave him the day off from the family masonry business, allowing Masoner and the temporary guardians to take Tobias to a local zoo and then to a clothing store, where Masoner bought the boy some clothes.

That day was the most recent time he saw Tobias face to face, but he said he has had online video chats with him 15 or 20 times since then.

“It was hard,” he said of seeing the boy so briefly in Indiana. “You have the feeling that you’re missing something.”

Masoner acknowledged he has had other run-ins with the law since serving time for receiving stolen property. He said that last July, he was intoxicated when he got behind the wheel of a car, got in an accident and then left the accident scene. He later was ordered to take alcohol awareness classes, which he has been doing, but said he has not had to spend any more time behind bars. He said depression over his separation from Tobias contributed to his bad experiences with alcohol.

A check of online criminal records from Allen County, Indiana, where Fort Wayne is located, indicates that Masoner doesn’t have other significant criminal violations in his background. Other violations by Masoner listed in the database include possession of tobacco while under the age of 18, possession of marijuana, and underage consumption of alcohol, all of which date from 2005 or 2006.

If the DNA test proves Masoner is Tobias’ father, there still will be legal issues that have to be decided. The Law Court decision vacated the probate court decision to terminate Masoner’s parental rights, but it did not establish that Masoner in fact does have parental rights as Tobias’ father.

According to the Law Court decision, the point is moot if the DNA tests come back negative. If they come back positive, Masoner still will have to go back to probate court to establish his parental rights.

The Law Court decision goes on to note that even if Masoner wins custody of the boy, the probate court should establish a transition process that would lessen the effect of transferring custody of the boy. The justices wrote that the process could include rights of contact, counseling and rehabilitation, among other things.

Should Masoner be awarded custody, the justices recognized in their decision, “the process of removing the child from the only home he has ever known will be a difficult and painful one for all involved. We encourage the probate court to determine the best way to introduce the child to his father.”

The Law Court decision also raises the question of whether the continuing temporary guardianship of Tobias with the Hancock County couple is appropriate. Assuming Masoner is found to be Tobias’ biological father, the decision says, the probate court must immediately reconsider its 2009 temporary guardianship order. In a footnote, the order suggests that the probate court judge could have terminated it 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.

While Masoner continues his efforts to be permanently reunited with Tobias, the Indiana man says he has had other positive developments in his life, including becoming engaged and fathering another child, Ryan Masoner Jr.

Masoner said he wants to gain custody of Tobias so Tobias can live with him and his large extended family in Fort Wayne, which includes Masoner’s parents, grandparents, a great-grandfather and others.

Masoner said he knows that once the DNA test results come back, he still will have to gain legal custody of the boy and that it won’t be easy for Tobias to move in suddenly with a family he has never known. But he said his being an everyday father to Tobias is the right thing to do.

“I know it’s going to be hard for him, but at the same time he’s going to be where he should be,” Masoner said. “He’s got a big family here waiting for him.”

Follow BDN reporter Bill Trotter on Twitter at @billtrotter.