Surrogate Mother Returns to Court in Sole-Custody Bid

SANTA ANA —  A surrogate mother who earlier this year was declared a legal parent of the baby girl she bore for an infertile couple begins another court battle today--this time to win sole custody of the child.

Surrogate mother Elvira Jordan, 42, who lives in Los Angeles County, sought custody of the child after she learned that the couple she had the baby for was getting a divorce.

A three-way custody fight among Jordan, the baby’s biological father and his estranged wife went to court last April to determine who had parental rights. A Superior Court judge ruled that Jordan and Robert Moschetta, 35, the biological parents, were also the legal parents. The child was conceived through artificial insemination.

The non-jury trial, which is scheduled to begin today before Superior Court Judge Nancy Wieben Stock, will determine whether Jordan or Moschetta gets sole custody of the now 16-month-old girl. Another issue that will be decided is what, if any, visitation rights will be granted to Moschetta’s estranged wife, Cynthia J. Moschetta, 51, who was denied parental rights in the earlier hearing.

Because all parties agreed in the first trial that the surrogacy contract was not legally binding, the case has become “an ordinary, garden-variety custody fight,” said Robert Moschetta’s attorney, Edie W. Warren.

With surrogacy contracts and adoption arguments set aside, the custody issue will now be decided on what is in the best interest of the little girl, named Marissa by the Moschettas and Melissa by Jordan.

Since the April trial, the Moschettas and Jordan have undergone court-ordered evaluations to help guide the judge decide what type of parenting situation is best. The report was submitted to the court several months ago.

The attorneys, who have all reviewed the confidential report, are under court order not to discuss its contents.

Warren said that her client agrees with recommendations made in the report and will be satisfied if the judge adopts them.

“We see it as favorable to my client,” Warren said.

Jordan’s attorney, Richard C. Gilbert, said he will challenge some of the recommendations in the report today in court. Because of the gag order, however, he declined to discuss his objections.

Cynthia Moschetta’s attorney, Leslee J. Newman, said she expects to play a minimal role in the upcoming trial. She said, however, that her client was not opposed to the findings in the report.

Currently, Marissa is in the temporary custody of Robert Moschetta, who lives in Lakewood. Jordan and Cynthia Moschetta have been granted temporary visitation rights.

Before the three-way custody struggle began, Jordan agreed to become a surrogate mother for the Moschettas in exchange for $10,000. The problems began during the pregnancy when the Moschettas’ marriage started to crumble.

The day before she gave birth in May, 1990, Jordan heard that the Moschettas were considering getting a divorce and decided that she would not allow them to take the baby home.

After intense negotiations, Jordan agreed to give them the baby under the conditions that she would not give her child up for adoption for at least a year; that the Moschettas seek marriage counseling; that she be allowed to visit the child any time, and that they pay the remaining $5,000 owed to her.

When the Moschettas separated, the case was taken to court.

The lawsuit was the second well-publicized surrogacy case to be filed in Orange County. The other involved a surrogate mother with no genetic link to the child, who was suing for parental rights.

In that case, surrogate mother Anna Johnson lost in her bid to be declared a legal parent. The judge’s ruling is being appealed.