Father Ordered to Share Custody With Surrogate

SANTA ANA —  An Orange County Superior Court judge Thursday rejected recommendations from court-appointed experts and granted joint custody of a 15-month-old girl to a surrogate mother and the child’s biological father.

In what is believed to be the first decision of its kind, Superior Court Judge Nancy Wieben Stock said surrogate Elvira Jordan deserved to share custody of the child she bore through artificial insemination for Robert and Cynthia Moschetta.

“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,” Stock said. “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 the toddler, Marissa Jordan Moschetta, be given to her father, while Jordan be given 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 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 would get 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. Holidays and vacations would alternate between them.

Cynthia Moschetta, 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 the judge’s decision.

“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.”

Judge Stock did follow the report’s recommendation that Cynthia Moschetta not be given any mandated visitation rights.

However, Stock said, “Cynthia is the one most victimized by the present circumstance. 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 said that she is disappointed with the decision but that she is pleased for Jordan and hopes that a voluntary visitation schedule can be worked out with her.

Experts on family law said they believe that this was the first time a surrogate has been granted joint custody of a child.

Said Gilbert, Jordan’s attorney: “It’s the biggest victory that a mother has had in a case like this, so we’re celebrating history right now.”

Scott Altman, a professor of law at the University of Southern California, 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 last April. After that, he said, it seemed to be “an ordinary custody” battle.

Harvard law professor Martha A. Field said she too could not recall another instance in which a surrogate mother had been granted joint custody with a biological father.

“The significance seems to be that the surrogate was treated as a full-fledged mother whose rights were not eliminated,” Field said.

However, Field said, Thursday’s ruling would probably not have a bearing on the legality of surrogacy motherhood in California. And the custody arrangement may benefit Robert Moschetta in the long run, she added.

“It seems to be an arrangement of child care,” she said. “As soon as the child gets older, she will be going to school during those hours. (Jordan) basically has custody during hours where one would have a baby-sitter.”

Although this phase of the legal battle was fought over custody issues, not surrogacy, Jordan’s victory is significant simply because so few surrogates have prevailed in court. Generally, surrogate mothers tend to be younger, poorer, less educated and less able to afford a long and costly legal battle than are the adopting couples.

The outcome in the Jordan case is also markedly different from another high-profile Orange County surrogacy dispute involving surrogate mother Anna M. Johnson.

In that case, Johnson fought for, and lost, custody of a child she bore for a married couple. Orange County Superior Court Judge Richard N. Parslow Jr. ruled that the surrogate contract was binding. In Jordan’s case, the surrogate contract was deemed unenforceable. The Johnson decision is being reviewed by a state appellate court.

The tortured history of the Jordan surrogacy case began in June, 1989, when she agreed to bear a child for the Moschettas in exchange for $10,000. But the arrangement began to unravel when the childless Santa Ana couple 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 the 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 set up another residence in Lakewood, left his wife and took the child with him.

Last April, in the first stage of the custody battle, both Jordan, 42, and Robert Moschetta, 35, were declared the legal parents following the dissolution of the surrogacy contract. Cynthia Moschetta, 51, who helped raise the child for six months but had no biological ties to the baby, was denied any parental rights.

Pending court-ordered evaluations of the three parties, the baby was allowed to live with Robert Moschetta. Both Jordan and Cynthia Moschetta were granted temporary visitation.

During trial earlier this month, most of the testimony focused on the court-appointed report that dealt with which custody arrangement would be best for the baby.

Among the recommendations was that custody be denied Jordan because she lives in a dangerous neighborhood in Cudahy in Los Angeles County.

In her ruling Thursday, Stock dismissed that recommendation as unfair to Jordan. The judge, however, did issue a “stay away” order against Jordan’s eldest son who had been involved in a shooting and convicted in a drug-related offense.

Under the terms of Stock’s ruling, Robert Moschetta and Jordan are to seek at least six months of counseling.

Stock also said the parenting schedule would have to be re-evaluated and revised as time went on, either voluntarily or by the court.

After the hearing, the child’s court-appointed attorney, Harold LaFlamme, said he was “delighted” by the outcome.

“I felt some sort of joint arrangement would be appropriate,” he said. However, the judge had “gone farther, quicker than I would have” in granting Jordan joint custody, he said.

Despite his view that the ruling was in the best interest of the child, LaFlamme said it was uncertain if Jordan and Moschetta could make the joint custody arrangement work.

“I can’t say whether they can or can’t and neither can anyone else,” he said. “One has to hope that with some professional assistance, they will.”