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U.S. Marine Corps Iraq war veteran Shaun Portaleos is battling to gain custody of his two-year old son. He poses with all the paperwork involved in his legal battle in his Onondaga Hill apartment.

(Stephen D. Cannerelli | scannerell@syracuse.com)

Update Dec. 12: Syracuse-area veteran with PTSD gets more time with young son as part of deal in custody battle

Onondaga, NY -- When a pool cue fell in a crowded restaurant, Shaun Portaleos heard the crack of a gunshot. He crouched to his knees and ducked. His family laughed. But the discharged Marine heard an echo of war.



Portaleos, of Onondaga, struggles with post-traumatic stress disorder after watching friends die and narrowly missing a catastrophic injury during two tours of duty in Iraq. Since his return home to the Syracuse area, he's waged another battle: equal custody of his 2-year-old son.



Portaleos, his little son and the child's mother are tied up in a two-year-old fight through state and federal courts with big implications. Should PTSD count against a veteran in custody fights? Should the Veterans Administration doctor be forced to testify in the case?



Two worthy goals - the desire to protect a child and the need for a grateful nation to not further penalize a traumatized soldier - collide in Portaleos' case. It's one of many thorny issues spawned by the growing class of PTSD victims from recent wars, estimated at anywhere from 100,000 to 300,000 nationally.



Lynne Gold-Bikin is a Philadelphia lawyer for 37 years who blogs for Huffington Post and has written a paper on PTSD in family law. She said PTSD must impact the child's best interests to be considered in Family Court.



"There's no question PTSD is serious," Gold-Bikin said. "But the question is, what are his symptoms and how do they affect his ability to parent?"



Portaleos said his child helps him cope with the trauma. "I don't have any bad days with my son," he said. "It's my son and I take responsibility. It's what a man does. Not just a man, it's what you're supposed to do."



But the boy's mother, Gina Shannon, said she's scared something could go wrong. "What happens if the child wakes up at night and he thinks he's back at war?" she wondered. "He turns a switch and flips out. He goes back to something."





Afghanistan war veteran Shaun Portaleos, who is undergoing PTSD treatment at the VA, is fighting for joint custody of his child, but the U.S. government blocked his VA psychiatrist from testifying on his behalf in support of his custody petition. In this 2012 photo, federal Assistant U.S. Attorney Paula Conan, middle, represented the VA. At right was Georgette Gonzales-Snyder, legal counsel for the Department of Veteran's Affairs. They were shown in Family Court Judge Michael Hanuszcak's courtroom.

Both parents say the Veterans Administration has the answers. But the VA won't let his doctor testify in court. That's despite the wishes of both parents and Family Court Judge Michael Hanuszczak, whose order forcing the doctor to testify was overturned on appeal.



In August, a federal court judge decided he could not force the VA to comply, but urged it to reconsider, calling the decision "arbitrary and capricious."



Last month, the VA repeated its denial. That will send the custody case to trial in December, barring a settlement first.



The winding court battle from Family Court to federal court has left both parents and their young son in limbo for a year and a half. That's three-quarters of the child's life. During that time, Portaleos has been given four nights out of 14 with his son. He's looking for equal time, or perhaps primary custody.



"My main struggle is that I just want my son and I have to go through all this," Portaleos said.



There's no question the PTSD has wreaked havoc on his life. He can't work and receives 70 percent disability from the VA. He gets another 30 percent for a back injury suffered from a roadside bomb in Iraq.



He can't sleep most nights, getting lucky if he gets three hours of respite. Nightmares come and go. The worst days are on anniversaries of a friend's death in Iraq. On bad days, he just wants to seclude himself from the world.



He makes weekly visits to the VA hospital in Syracuse.



"I used to handle it a lot worse," Portaleos said. "I try to keep myself around people who understand."



He draws and paints and works out at the gym. He helps a fellow veteran, Joshua Watkins, with a website called JohnnysNewHope.org that seeks to help veterans cope with invisible battle scars.



He likens his invisible wounds to soldiers who return home physically scarred.



"When you see me and I lost an arm, you know what happened to me, I lost my arm," Portaleos said. "When people hear PTSD, they think, 'He's screwed up.' But it can be one thing, it can be a million. It's a scar that you can't see."



The VA treats Portaleos' level of PTSD seriously. This is how it generally describes his level of disability: "Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood." Symptoms include struggling with stressful circumstances, maintaining relationships and intermittent or near-continuous panic or depression.



Mark Sullivan, a retired colonel in the Army Reserve and a military lawyer, said there are very few custody battles involving veterans with PTSD. Sullivan said he was aware of Portaleos' case, and it's not surprising PTSD would be used against him in Family Court.



"It happens in a very small number of cases," said Sullivan, a North Carolina attorney who himself is representing a Marine veteran with PTSD seeking more parental custody. "But when a service member has an impairment, it will happen in a large number of cases."



A special counsel for New York court system said that lots of parents in custody battles have problems. He was not familiar with the soldier's case, but said generally that courts look at how people are dealing with those problems.



The question is: "Are they medically doing what they're supposed to be doing to keep it under control?" said Gerard Neri, special counsel to the Fifth Judicial District. "A lot of people have DWIs or are alcoholics or drug addicts. That's part of life."



Gold-Bikin said that a parent's "concerns" have to be backed up by evidence showing that the other parent's behavior impacts the interest of the child.



In this case, both parents agree that Portaleos once punched six holes in a wall during an argument. Shannon said he once pushed her in front of their child; Portaleos said he's never been violent towards her.



There are no police reports of domestic violence. There are no reports that Portaleos has ever been violent towards his son.



While the custody battle has other disagreements and accusations, it's the PTSD that has kept everyone waiting for answers.



For its part, the VA says it doesn't want to appear to favor one side or the other. It also said it didn't want to "spend the time and money of the United States for private purposes."



Without the doctor, it's not clear what role Portaleos's medical records could play at trial. As his lawyer, Vin Finocchio noted, "You can't cross examine records."



Portaleos pointed to ways his son helps. They go to the zoo so the boy can see the elephants, despite the father's fear of crowded places. Caring for the toddler keeps his mind off the demons, Portaleos said.



The boy's mother isn't convinced. "If he's capable of taking care of a child, why is he not working?" She pointed to the PTSD and his medications as reason for concern.



Since the couple split, Shannon has returned to live with the man she left before seeing Portaleos. They've been married a year. She admitted that she once had a year-long order of protection against her now-husband, but said things are going well.



Portaleos said some soldiers with PTSD couldn't care for a child. But he's convinced he can.



"There's nothing that would hinder me from being a father," he said. "When I came back over here, I thought fighting was done for me, and now I'm fighting another battle."



