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Surrogacy Makes For Complex New Jersey Child Custody Case

There are favors, and then there are very big, generous favors. For example, there is opening the door for someone. That’s a simple favor. But then, there is carrying and having children for someone. That’s a big favor.

It’s a favor that one sister took on in order to help her brother and his same-sex partner have children. She served as a surrogate for her brother, with another woman’s egg fertilized by her brother, and gave birth to twin girls. Generosity, however, later turned to child custody drama in New Jersey.

The sister and brother’s relationship deteriorated after the twins were born. She also claims that she felt forced into the surrogacy contract. A New Jersey family law judge was forced to make a decision regarding the custody arrangement of the girls. Would the brother (the biological father) be the best choice for primary custody? Or, would the sister (who based on precedent is considered the biological mother) be the most fit primary parent?

In custody cases, there is usually the valid option of assigning joint custody of the children. But the judge in this case didn’t see that as being a healthy or realistic option. In order for joint parenting to work, each party needs to meet some sort of agreement about how to raise the kids. In this case, the brother and sister had extremely varying opinions on surrogacy, homosexuality and on how the kids would generally be educated and raised. Joint custody would not be in the best interest of the kids, according to the judge.

In a ruling that some are saying is a victory for same-sex couples and parents, the judge ruled in favor of the biological father. He will get sole custody of the twin girls, while his sister will have contractual visitation rights. The judge believed that in the custody of the sister, the twins’ relationships with their fathers would have been at-risk because the sister and her mother reportedly speak badly of the homosexual lifestyle.

In custody decisions, judges generally want to give both parents rights to their children. But at the top of the list with regards to custody cases is that the judge needs to determine what is in the best interest of the children, and that is not always joint custody. Courts want to give kids the chance to have healthy relationships with their parents. With one parent consistently saying disparaging remarks about the other to the kids, she is taking away the kids’ chance at having a healthy relationship with their dad.


The Star-Ledger: “N.J. gay couple fight for custody of twin 5-year-old girls,” Ted Sherman, Dec. 20, 2011