Estranged Wife Is Denied Custody of Surrogate Baby : Parenting: Her husband and the birth mother are remaining contenders for legal rights to the 10-month-old girl.

A judge ruled Monday that an Anaheim woman who helped raise the child born to her husband and a surrogate mother should have no legal rights to the 10-month-old girl.

The ruling came on the first day of a trial to determine which of three contending “parents” should win custody of the child--the father, his estranged wife or the surrogate mother they hired before their marriage crumbled.

Citing a recent state appellate court decision that denied a lesbian custody of the children she and her gay lover had raised together, Orange County Superior Court Judge Nancy Wieben Stock ruled that Cynthia J. Moschetta could have no parental rights since she was neither the biological mother nor had she adopted the child.

However, the judge did not rule out the possibility that Moschetta could later be awarded visitation rights under a law that allows stepparents to have continuing contact after a divorce.

Moschetta’s attorney, Leslee J. Newman, said the decision is in keeping with established law, but criticized the law for failing to recognize the rights of those who rear children in unconventional arrangements.

“The results are really tragic,” Newman said.

Cynthia and Robert P. Moschetta hired a surrogate mother to bear Robert Moschetta’s child, but their marriage faltered even before the child was born. The surrogate, Elvira Jordan, has said she agreed to let the couple take the child home from the hospital on condition they stay together and seek marriage counseling.

But when the baby was 6 months old, Robert Moschetta left his wife of nine years and took the child with him.

With Monday’s ruling, the three-way legal battle has narrowed to a custody dispute between Robert Moschetta and Jordan.

Jordan testified Monday that she agreed to give the baby up only because she thought the Moschettas were a happy, intact couple. Now that they are divorcing, she wants to raise the child, whom she calls Melissa and the Moschettas have named Marissa.

The Moschetta surrogate motherhood case, coming less than six months after another Orange County judge denied surrogate mother Anna M. Johnson’s bid for custody of the child she delivered, packed the courtroom halls with television cameras Monday.

However, the two surrogacy disputes are legally distinct in that Johnson was a gestational surrogate who carried a child that was created from the genetic material of Mark and Crispina Calvert. Jordan is the baby’s natural and biological mother, making her position more comparable to that of Mary Beth Whitehead in the famous New Jersey Baby M case.

In the Baby M case, the wife of the sperm donor, Betsy Stern, had no legal standing to fight for custody. Cynthia Moschetta argued that that was unfair.

In testimony Monday, she noted that she had signed the original surrogacy contract, which stated that she would adopt the child, had helped pay the $26,000 cost, took a maternity leave to care for the baby, and wanted to adopt the child. After she and her husband separated, a judge allowed her visitation rights and she paid her estranged husband $150 per month in child support, she said.

Her attorney argued that these actions made Cynthia Moschetta an equal partner in the adoption of the baby, even though an adoption was never formalized.

Stock rejected that argument, saying it was less compelling than the case rejected by a Court of Appeal in San Francisco last month. In that case, two gay women identified as Nancy S. and Michele G. had lived together since 1969 and had raised two children together, both conceived by Nancy S. through artificial insemination.

Although Michele G. was listed as the “father” on the children’s birth certificates and the children called both women “Mom,” the court ruled that Michele G. had not adopted the children, was not their biological mother, and therefore had no right to custody or visitation now that the pair have separated.

Harold F. La Flamme, the court-appointed lawyer for the baby girl in the Moschetta surrogate case, has not yet taken a position on who should raise the child. But he told the judge that Cynthia Moschetta had no parental rights.

In an emotional cross-examination, La Flamme sought to establish that Cynthia Moschetta was “on notice” at least six weeks before the baby’s birth that her husband was contemplating leaving her and raising his daughter alone.

Cynthia Moschetta acknowledged that she and her husband had hidden their marital troubles from Jordan.

She testified that Jordan was hospitalized with bleeding and that they feared any upset might damage her health. La Flamme suggested that the “charade,” including the couple holding hands at Jordan’s bedside, was adopted because the couple knew that Jordan would refuse to give them the child if she learned the marriage was failing. Cynthia Moschetta denied this.

La Flamme argued that Cynthia Moschetta is “a woman who closes her eyes to certain realities.”

“Wishful thinking does not make a parent,” he said.

Robert Moschetta’s attorney said Jordan has lied about her age (42, not 35) and her medical history, and never would have been selected by the Moschettas had she told the truth.

Robert Moschetta’s attorney, Edie Wittick Warren, has also argued that Jordan agreed to sell her baby for $10,000, signed away her rights to the child six months later, and has in effect abandoned the baby by leaving it with the Moschettas for so many months.

In legal briefs, Warren argued that there is a “significant difference between a woman who makes a decision to give up a child for adoption after the conception of the child, and a woman who makes a decision to conceive a child for profit.”

“There are, in any society, some things that civilized people do not sell,” she wrote.

Jordan’s attorney, Jeri R. McKeand, called that “a very offensive statement” and one that could also be turned against Robert Moschetta.

“Would a civilized person buy a baby?” McKeand asked.