Experts Are Critical of Joint Custody Rule by Judge : Surrogacy: Family law and child development authorities warn that splitting the toddler’s time between her biological parents will ultimately be unhealthy for the girl.

Experts on family law and child development on Friday overwhelmingly criticized a judge’s ruling that gave a surrogate mother and biological father joint custody of a 16-month-old girl conceived through artificial insemination.

“The judge can’t be serious,” said James B. Boskey, a family law professor at Seton Hall Law School in Newark, N.J. “I don’t see how this could possibly be healthy for the child. This is precedent-setting in a very dangerous way.”

Stephen Herman, a child and adolescent psychiatrist and professor at the Yale Child Study Center in New Haven, Conn., said: “Judges think that joint custody is going to be a panacea, but it rarely works. . . . It’s fraught with problems.”

However, not everyone denounced Orange County Superior Court Judge Nancy Wieben Stock’s order in the custody battle between surrogate Elvira Jordan and the couple she bore the child for, Cynthia and Robert Moschetta.

“I think it’s great,” said Mary Beth Whitehead-Gould, the surrogate mother in the watershed “Baby M” case. “I wish I had gotten joint custody. . . . Personally, I think this is the best situation for the child.”

In the 1987 New Jersey case, Whitehead-Gould carried her baby to term for a couple and then decided she wanted to keep the baby. A judge ultimately gave her visitation rights.

But on Friday, it did not matter who supported or opposed the unusual custody arrangement ordered by Stock on Thursday. The toddler, Marissa Jordan Moschetta, was at her mother’s home in Cudahy in Los Angeles County, fulfilling Jordan’s part of the custody experiment.

Under the terms of the custody plan, Jordan, 42, gets custody of the child from 8 a.m. to 4 p.m., Monday through Friday, while the biological father, Robert Moschetta, 35, has the child the rest of the time. Holidays are alternated, with each parent allowed a four-day vacation with Marissa a year.

Stock’s ruling has decided a bitter nine-month battle for custody and visitation rights. Robert Moschetta has vowed to appeal the ruling.

Cynthia Moschetta, 51, who helped raise Marissa for six months but had no genetic link to the child, was denied any mandated visitation rights.

The case began in June, 1989, when Jordan agreed to bear a child for the couple in exchange for $10,000. But when the Moschettas filed for divorce six months after the child was born, both Moschettas and Jordan fought for custody of Marissa.

In April, the surrogate contract was deemed invalid and Jordan and Robert Moschetta were declared the legal parents.

Stock’s ruling Thursday rejected recommendations from court-appointed experts that said Robert Moschetta should be given sole custody of Marissa, while Jordan should receive only limited visitation privileges.

On Friday, the court-appointed experts--family counselor Rita Berlin and Dr. Gerri M. Olin of the Center for the Family in Santa Ana--did not return repeated telephone calls. Details of their report have been sealed by the court. Stock also could not be reached for comment.

Other custody experts, however, agreed with the idea that one parent should have sole custody of the child, although most of them cautioned that they were unfamiliar with the specifics of the Jordan case. Most said that joint custody arrangements were virtually unworkable, succeeding only when the parents have good relationships.

Because of the hostilities among the parties in this case, a joint custody arrangement is “doomed for failure,” according to Dr. Justin Call, a psychiatrist and head of UC Irvine’s Child and Adolescent Psychiatry Department.

“It’s a fantastical solution that is convenient for the court,” Call said. “There’s little chance of it being successful. . . . There’s a moral lesson here: If you’re going to choose a surrogate, choose someone you can get along with.”

Call said a joint custody arrangement would “disrupt” Marissa’s home life. “A baby needs a secure base to grow up in,” he said.

Philip J. Parker, a psychiatrist at Wayne State University School of Medicine in Detroit, who has interviewed more than 800 surrogate mothers, said he too was “concerned with the idea of the child being bounced back and forth between parents every day.”

“The child needs security and needs to know who the main parental figure is. She needs to know who gives the orders,” he said. “This child is going to be confused with two sets of rules and morals.

“It’s potentially very harmful for the child,” Parker added. “Joint custody is not the best of both worlds as many people think. I don’t think it’s in the best interest of the child.”

Herman, the Yale professor, said that “although it may seem unfair to deny a parent joint custody, it might have been best for the child.” He cautioned, however, that he was unaware of the specific circumstances of the case. “This is generally true, though,” he said.

Michael H. Shapiro, a law professor of bioethics at USC called the judge’s decision “sort of a compromise.”

“There are no happy solutions here,” he said. “Every option has it’s costs and benefits. . . . If we regulated (surrogacy), the number of such incidents would be reduced.”

Seton Hall’s Boskey was more harsh about the decision.

“The judge was lazy,” he said. “This judge is patently ignoring the interests of the child and trying to divide her like an object.”

Whitehead-Gould, however, said “the experts make too big of a deal about what these children can’t endure. Children can cope. A lot of people don’t understand a child makes her own judgment.”

She said the fact that Jordan was given joint custody was very significant. “She was given an equal footing with the father,” she said. “The child knows (the mother) has equal control.”

At least one psychiatrist agreed.

Dr. Michelle Harrison, associate professor of psychiatry at the University of Pittsburgh’s School of Medicine, said there is “no better alternative. It’s not ideal, but the child shouldn’t lose a mother’s love.”

Harrison, who was scheduled to appear as a witness for Jordan during the trial but was never called, said, “Elvie’s the only mother this child has.”

She added, however, “I know that my opinion is in the minority.”

Chronology of the Custody Fight

May, 1989-Elvira Jordan, an apartment manager and mother of three, is introduced to Cynthia and Robert Moschetta, a childless Santa Ana couple, as a possible surrogate mother.

June 30, 1989--Jordan signs a surrogacy contract, agreeing to bear a child for the Moschettas for $10,000.

November, 1989--Jordan becomes pregnant through artificial insemination. She receives half of the agreed-upon fee of $10,000.

Nov. 30, 1989--Robert Moschetta tells his wife that he is considering leaving her. However, the couple do not inform Jordan that their marriage may be ending. Jordan had previously indicated that she would bear a child only for a happy, intact couple.

May 2, 1990--Jordan is hospitalized because of hemorrhaging. She will remain in the hospital for nearly a month.

May 27, 1990--Cynthia Moschetta visits Jordan in the hospital to tell her that her husband is leaving her.

May 28, 1990--Jordan gives birth to a girl. Although more than two months premature, the baby is healthy. Jordan names her Millessa; the Moschettas name her Marissa. Jordan indicates that she will not turn the baby over to the Moschettas because of their marital problems.

May 30, 1990--After Robert Moschetta assures Jordan that he will stay with his wife, she turns the baby over to the Moschettas.

Sept. 17, 1990--Jordan receives the remaining $5,000 surrogacy fee. At Robert Moschetta’s request, she signs a document she assumes is a receipt. However, the document surrenders all of Jordan’s parental rights and gives sole custody of the baby to Robert Moschetta.

October, 1990--Robert Moschetta leaves his wife and takes the baby with him.

Dec. 21, 1990--Cynthia Moschetta files a petition for separation from her husband and for custody of the baby. In response, Robert Moschetta files a petition seeking dissolution of marriage. Jordan files a motion to be joined as a party to the dissolution action.

April 8, 1991--The first stage of a three-way custody battle begins in Superior Court between Jordan, Robert Moschetta and Cynthia Moschetta. Judge Nancy Wieben Stock rules on the first day of the trial that Cynthia Moschetta has no legal right to the child.

April 18, 1991--Stock rules that Jordan is the child’s legal mother. The judge orders evaluations of the three parties to help her determine who should receive primary custody. In the meantime, Robert Moschetta is allowed to keep the child with him at his home in Lakewood, while Jordan and Cynthia Moschetta are granted temporary visitation.

Sept. 3, 1991--The final stage of the custody battle begins in Superior Court as Stock hears testimony on whether Jordan or Robert Moschetta should have sole custody of the now 15-month-old child. A court-ordered report concludes that Robert Moschetta should receive custody.

Sept. 26, 1991--Stock rules that both Jordan and Robert Moschetta will share custody of the child. Cynthia Moschetta is granted no visitation rights, but Jordan says after the hearing that she will allow her to visit with the child. Robert Moschetta’s attorney says they plan to appeal.