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A woman’s attempt to strip her ex-boyfriend of parental rights on the grounds that her 3-year-old special needs child is incapable of bonding with him has been rejected by a Family Court judge in Syracuse.

In Matter of A.S. v. B.H., a mother sought to vacate the acknowledgment of paternity that her former boyfriend signed. The mother, noting that a subsequent home DNA test indicated the boyfriend was not the child’s biological father, attempted to cut the man out of her son’s life by pleading an unusual argument.

But Onondaga County Family Court Judge Michael Hanuszczak found the mother’s testimony about the child’s bonding ability “exaggerated and self-serving” and said that even if her unproven assertions are accurate, nothing in the law requires that “a child must be capable of overtly returning parental affection” for a parental bond to exist.

“Under [the mother's] line of reasoning, a special needs child … would be denied a father if the mother did not lend her approval to the relationship,” Hanuszczak wrote. “In cases involving the best interests of a child, the court looks beyond any limitations of the child to determine whether a parent-child relationship exists.”

The case involves a woman, a child and two men, one of whom is a virtual stranger to the child and another who is a biological stranger to him.

According to the decision, the mother (“A.S.”) and the man who signed an acknowledgement of paternity (“B.H.”) had an on-again/ off-again relationship for several years, during which the child, born in December 2011, was conceived. A.S. told B.H. a few months after the birth that the boy may not be his child. Regardless, records show that B.H. was involved in the child’s upbringing when they lived together, and made efforts to sustain the relationship, albeit without providing financial support.

During one of their break-ups, A.S. performed a home DNA test that revealed that another man, a friend of B.H., was actually the biological father. But A.S. kept that knowledge to herself for two years before disclosing to B.H. during the heat of an argument that the child was not his biological son. She then sought to vacate B.H.’s acknowledgment of paternity on the grounds that the child could not bond with him.

Hanuszczak said A.S. knew as early as June or July of 2011 that B.H. was not her child’s biological father and could have petitioned at that time to vacate the acknowledgement of paternity. He also said she did not—but could have—fostered a relationship between the child and the genetic father.

“Instead, she acquiesced in the formation of a parental bond between [the child] and B.H. until such time as the relationship between B.H. and herself soured,” Hanuszczak wrote.

At trial, the biological father, N.H., who was aware of his paternity two years before his friend learned the truth, said he never applied for parental rights because B.H. loves the child and he did not want to “break up a relationship or break a child’s heart,” according to the decision. N.H.’s attorney said in closing that her client would accept whatever decision the court made and was willing to “step up” to be the father if that would best serve the interests of the child.

Hanuszczak found that it would not be in the best interest of the child to vacate the acknowledgement of paternity or order a formal DNA test.

Appearing were: Heather Vincent, an associate at Tully Rinckey in Syracuse, for the mother; Rory Gilhooley, an associate at Finocchio & English in Syracuse, for the non-biological father; Diane Darwish Plumley of the Darwish Law Office in Syracuse for the biological father; and John Voninski of Manlius as attorney for the child. Voninski had argued that B.H.’s contact with the child did not show a parental bond and urged the court to order DNA testing.

Gilhooley said he was able to show that B.H. had in fact bonded with the child. The attorney said the connection between his client and the child transcends genetics.

“He wasn’t concerned about the biology and felt that he had developed a parent-child relationship and was the only father-figure in the child’s life,” Gilhooley said. “We entered into evidence close to 20 different photographs covering the span of the child’s life, showing [B.H.] at birthday parties, taking the child to the zoo and museums etc. etc. The pictures, worth more than a 1,000 words, offered irrefutable proof that he had been involved in the child’s life.”

In contrast, Gilhooley said, the biological father, who did not know of his paternity for two years, had no relationship to the child.

“My client was able to show that he was the sole father figure in this child’s life, and to remove him would destroy the parent-child relationship,” Gilhooley said. “The child has some developmental delays and there was a difference of opinion as to whether the child recognizes [B.H.] as his father or not, cognitively, but I think our proof, especially the pictures, showed the bond.”

Vincent was in trial Wednesday and unavailable for comment. However, Barbara King, a Tully Rinckey partner who runs the firm’s family and matrimonial law division, said the ruling provides a “great analysis of the law,” particularly in regard to the “bonding” issue. She said the take-away for litigants in such cases is to “make sure what you say and what you do match up.”

“The judge found that [the mother] behaved one way in terms of treating this guy as a father even though she knew years earlier that he wasn’t the father,” King said. “I think the judge found what she said in the petition versus what she did inconsistent, and began looking at motives: If she knew back in June or July of 2001 that he wasn’t the dad, why didn’t she do anything about it? The lesson is be careful how you act, and think about what you might want to do in the future.”