DIVORCE COURT TO DECIDE CUSTODY OF 14-YEAR-OLD CHILD BORN TO SURROGATE AND NEVER ADOPTED

        The Connecticut Supreme Court has reversed a divorce court's ruling that it did not have jurisdiction over a custody dispute between a divorcing couple where the wife had never formally adopted the 14-year-old child the couple conceived through traditional surrogacy. Although it agreed that the wife was not a parent because the child was not a "child of the marriage" as that is defined under Connecticut law, the appellate court ruled she may pursue her claim for custody as an "interested third party." Such parties are permitted, under Connecticut law, to attempt to rebut the presumption that it is in a child's best interests to be placed with his/her biological parent. The decision culminates seven years of litigation, and the court noted that raising the child together for her first eight years, the husband's having participated in a "public ruse" that the wife was the child's birth mother, and the child having lived with the wife for over seven years thereafter, were sufficient to rebut the legal presumption that it was in the child's best interest to be in the father's custody.

        The court accepted the lower court's ruling that, having failed to adopt the child, the wife was not within the law's definitions and protections of a "child of the marriage," which it noted included a child born through artificial insemination or a child born to either spouse and adopted by the other. While the decision therefore confers what is known as "subject matter jurisdiction" on the trial court to decide whether the girl is better off with the wife or husband, it does not award the wife status as mother. To retain custody, she must ultimately meet the standard of proof set out for "interested third parties". Three justices dissented from the court's opinion, arguing that the child should be considered to come within the law's definition of "a child of the marriage." A similar issue has been recently debated by the California courts in the widely reported case of Jaycee Buzzanca. (Legally Speaking, winter '97, summer 498). Doe vs.Doe, Conn SupCt, 244 Conn. 403 (4/7/98).