Judge Orders Co-Custody in Surrogate Case : Parenthood: Mother, biological father, who is legally separated from his wife, will share in upbringing of the 15-month-old girl.
An Orange County Superior Court judge Thursday rejected recommendations from court-appointed experts and granted joint custody of a 15-month-old girl to the child’s surrogate mother and the biological father.
Experts on family law said they believed this was the first time that a surrogate has been granted joint custody of a child.
Judge Nancy Wieben Stock said Elvira Jordan, 42, deserved to share custody of the child she bore through artificial insemination for Robert and Cynthia Moschetta, who are now seeking a divorce.
“Much has been said about the fact that this has been a surrogacy case, where a child was created by a contract not in a natural way,” said Stock. “This case, however, is not that different from a paternity case or custody case which this court sees all the time.”
The judge ignored a court-ordered report that recommended sole custody of Marissa Jordan Moschetta, be given to Robert Moschetta, 35, while Jordan receive only visitation rights.
“That proposal requires this court to conclude here and now that the father is the superior parent,” Stock said. “Since Ms. Jordan’s contact with Marissa has been so limited to date, it would require the court to make a ruling in a vacuum. It would leave the question permanently unanswered--what kind of mother to Marissa would Ms. Jordan have been?”
After the ruling, Jordan, a mother of three, nearly collapsed with emotion. With her attorney, Richard Gilbert, supporting her, Jordan spoke to reporters.
“I prayed hard and I had faith that God was going to pull through, but I never knew it would be all this,” she said with tears streaming down her face. “It’s better than the recommendation.”
When she gets Marissa, “my whole family is going to get together. She is going to get to see all her cousins, something that she’s not used to.”
The judge ruled that Jordan, who lives in Cudahy, would keep the child from 8 a.m. to 4 p.m., Monday through Friday, and that Robert Moschetta would have her the rest of the time. Holiday and vacations would alternate between them.
Cynthia Moschetta, 51, who is legally separated from Robert, was granted no visitation rights.
Robert Moschetta strongly denounced the ruling, saying it was not in the best interest of his child. He said he plans to appeal.
“Very simply stated . . . my daughter’s best interest would be served by sole physical custody by me,” he said. “That’s what the report said. I cannot comprehend why that expert report was not upheld. . . . Pure and simple, in my opinion, it’s a huge mistake.”
Stock did follow the report’s recommendation that Cynthia Moschetta not be given any mandated visitation rights.
“Cynthia is the one most victimized by the present circumstance,” Stock said. “Cynthia has experienced the most profound losses a human being can experience all within the span of 16 months. She has lost her child, her husband, her family life.”
Cynthia Moschetta, who cannot bear children, said she was disappointed with the decision, but said she was pleased for Jordan and hoped that a voluntary visitation schedule could be worked out with her.
Scott Altman, a professor of law at USC, said he was unaware of any other such arrangement in a surrogacy case. He said, however, the legal significance was determined when Jordan was granted parental rights. After that, he said, it seemed to be “an ordinary custody” battle.
The case stemmed from a June, 1989, surrogate arrangement between the Moschettas and Jordan who agreed to bear a baby for the childless Santa Ana couple in exchange for $10,000. But the arrangement soured when the Moschettas started having marital problems.
The day before Marissa was born in May, 1990, Cynthia Moschetta visited Jordan in the hospital and told her that she and her husband were considering a divorce.
At that point, Jordan reneged on the deal. She later agreed to give up her child on the condition that the adoption not occur for at least a year and that the Moschettas undergo marriage counseling, among other provisions.
The case went to court last December after Robert Moschetta secretly established residence in Lakewood, left his wife and took the child with him.
Last April, in the first stage of the custody battle, both Jordan and Robert Moschetta were declared the legal parents following the dissolution of the surrogacy contract. Cynthia Moschetta, who helped raise the child for six months, was denied parental rights.