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In 1995, the 43-year-old owner of a graphic design company agreed to carry to term the child of one of her employees who was in a gay relationship. Two years later a baby boy was born, but the surrogate-mother agreement soon unraveled, with both the mother and father claiming exclusive custody. In a decision issued last week, New York State Supreme Court Justice Marylin G. Diamond resolved the impasse by awarding exclusive custody to the father. In reaching that conclusion, Diamond wrote in C. v. G., 107370/98, that even though the arrangement that the two parents had entered into may have been an illegal surrogacy contract, she could look to its terms to determine the parties’ intentions. A New York statute, Domestic Relations Law Section 123, makes surrogacy agreements unenforceable in this state, Justice Diamond pointed out. The parties’ intent was quite clear, according to Diamond, from a letter that the mother, who is identified as C. in the decision, faxed on April 16, 1996 to G., the baby’s father by artificial insemination. The letter specified that the father, G., would take the baby home from the hospital and “KEEP him/her” [emphasis in original]. The letter also allowed G. to adopt the baby after “a respectable period of time” and also specified that father would not “hit” the mother “up for support if I ever become rich and famous.” The letter also asserted that the mother, C., would not meddle in the child’s upbringing and that there would be no strict visitation schedules to which she must adhere. Diamond noted that at some point, C. changed her mind and sought more time alone with the child. From that point on, there was increasing friction between the two biological parents over who would have access to the child and at what times, leading eventually to the custody contest. In resolving the dispute, Diamond noted that the touchstone should be the pre-existing custody arrangement. With respect to that key factor, she pointed out, the child has lived exclusively with G. and his partner since the boy’s birth on Sept. 20, 1997. Diamond also noted that C. had not even purchased a crib for her apartment until after she filed a writ with the court seeking sole custody. Even though Diamond awarded G. sole custody, she instructed him to keep C. informed in writing of major issues and to solicit her views on all child-rearing decisions “not of a routine nature.” Diamond also set a visitation schedule for C. and ordered a hearing to determine how much child support she should be required to pay as the non-custodial parent. C., the mother, was represented by Phyllis Gelman of New York’s Gelman & Feinberg, and G., the father, by Phyllis Levitas, also of New York.

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