Surrogate Loses Joint Custody of O.C. Girl, 5

Ending an odd custody war that drew national attention, a surrogate mother on Friday was stripped of shared parental authority over her 5-year-old daughter when the judge ruled the child would be safer and healthier in the care of her biological father.

Brushing aside the issues of surrogacy, Orange County Superior Court Judge John C. Woolley awarded primary custody to the father, Robert Moschetta of Los Alamitos. The judge ruled that the child is most attached to the father and has suffered under a shared arrangement with surrogate mother Elvira Jordan. She was hired by Moschetta and his then-wife to give birth through artificial insemination.

Woolley said the girl, Marissa Jordan Moschetta, is better off in the home where she lives with Moschetta, a 39-year-old occupational safety specialist, and his current wife. The judge described Jordan’s neighborhood in Cudahy as one troubled by sporadic gunfire and gang activity and noted that Jordan, who is single, was convicted of welfare fraud and has a son in prison.

“The court finds the child’s health, safety and welfare dictate placement with the father,” Woolley said in a four-page ruling that he read in court. “It would be simple to hold that both parents should share the rights and responsibilities for religious, educational and medical decisions regarding the child; however, the evidence does not support that conclusion.”

Moschetta cheered the end of the bizarre five-year dispute into the largely uncharted legal territory of surrogate parenting. The custody battle began when he and his wife divorced, and Jordan refused to give up her parental rights to the child she was paid $10,000 to bear.

He said Marissa will spend Thanksgiving with him.

“There’s a lot to be thankful for this year,” Moschetta said outside court. “It’s a time of healing for all parties. . . . No one’s winning or losing here. This is for Marissa.”

Jordan was not present for the ruling, but her attorney said she was pleased Jordan would have the right to keep the child overnight on alternate weekends and retain visitation on alternate holidays. Currently, the child visits Jordan weekdays or after school and spends the rest of the time with Moschetta.

In September, 1991, Orange County Superior Court Judge Nancy Wieben Stock surprised experts by awarding shared custody to Moschetta and Jordan in a ruling that was believed to be the first of its kind.

A state appellate court later affirmed Jordan’s parental rights but sent the case back to the lower court in Orange County to decide who should have primary custody. This was the issue Woolley decided Friday.

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The shared arrangement proved contentious, with the parents clashing bitterly over everything from where Marissa should attend preschool to how she should be disciplined. Jordan said she once didn’t tell Moschetta that Marissa was infected with head lice because she was afraid he would blame her, Woolley noted.

A court-appointed psychiatrist testified that shared parenting was creating emotional problems for the child that would likely worsen as she got older. “It is in the child’s best interests to live in a stable home and environment free from excessive tension with orderly and routine daily activities,” Woolley said.

As bitter as the fight became, both sides seemed to agree on one thing in the end: surrogacy can become a mine-strewn path to parenthood.

“Beware of entering into surrogate relationships,” said Diane J. Marlowe, the attorney representing Jordan. “Unfortunately for the surrogate, it’s the Scarlet ‘S’ that you wear for the rest of your life.”

Moschetta had even sterner advice.

“Surrogacy, in the state of California?” he said. “Don’t do it.”

Nancy Bunn, Moschetta’s lawyer, said the long legal tangle might have been avoided if there were state laws regulating surrogacy contracts. She called on the Legislature to tackle the issues around surrogacy--a plea also made by state appellate justices who sent the Moschetta case back for the latest trial.

“If it was regulated, or outlawed, this heartbreak wouldn’t have occurred,” Bunn said.

Some states allow surrogacy and others have banned it entirely. A bill that would have regulated surrogacy contracts in California was vetoed by Gov. Pete Wilson in 1992.

Unlike most custody fights, the Moschetta case played out publicly, drawing television cameras to the original custody proceedings in 1991 and fueling a swirl of controversy surrounding surrogacy cases.

The famous “Baby M” case--in which surrogate Mary Beth Whitehead-Gould refused to give up the child she bore for an infertile couple--ended when the New Jersey Supreme Court ruled in 1988 that surrogacy contracts were illegal. Whitehead-Gould was given visitation rights.

In 1993, the California Supreme Court upheld a surrogacy contract between Tustin couple Mark and Crispina Calvert and surrogate Anna Johnson, who was implanted with a fertilized egg, and awarded the Calverts full custody of the 3-year-old child.

The Moschetta case differed from the Calvert case in that Jordan was found to have the rights of a biological parent.

Jordan agreed in 1989 to bear a child for Moschetta and his then-wife, Cynthia, for $10,000. The deal fell apart, though, when the Moschettas split up and Robert Moschetta took sole responsibility for the child. In changing her mind, Jordan said the arrangement was made with the assumption that the child would live in a stable, two-parent home.

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Stock, the original judge, decided the ensuing three-way custody battle by giving Jordan and Robert Moschetta joint custody. Cynthia Moschetta was granted no visitation rights. Robert Moschetta appealed the joint arrangement, arguing Jordan gave up her rights in the contract, but appellate justices disagreed.

The recent two-week trial lacked some of the fireworks of the first custody battle, during which Cynthia Moschetta at one point tore off her husband’s toupee in front of television cameras for a national news show. She testified on Jordan’s behalf in the new trial, saying it would be “a tragedy” if Jordan lost her shared rights.

Robert Moschetta said he plans to seek therapy for Marissa, who doctors said suffers anxiety and confusion about her identity.