An Unusual Custody Battle Involving a Surrogate

By Adrian Altshuler | August 18, 2021

An Unusual Custody Battle Involving a Surrogate Canadian courts recently saw an intense custody fight that is illustrative of the bitterness that can be at the heart of any custody battle. A surrogate, known by her initials KB, agreed to bear a child for a married man, known as MSB, and the man’s wife. The surrogate slept with MSB in order to conceive the child, and now claims that she is entitled to joint guardianship of the baby.

The strange turn of events was recently reported by The Daily Beast. The journey began when the surrogate initially volunteered to an artificial insemination procedure that failed. KB claims the man then suggested they try to conceive naturally. She says he “secretly promised” that if the conception was successful, he would leave his wife and so that MSB and KB cold then raise the child as their own.

Both sides in the custody dispute agree that in May 2017, the parties agreed that the married couple would have custody and KB would have some visitation rights. KB says she only signed the agreement to ensure the baby had healthcare coverage.

When KB sought a formal visitation schedule and $100,000 (the couple says they paid her expenses; KB claims the money was a gift), the relationship ended. By February 2020, KB had no visitation rights. She filed a lawsuit in July 2020 where she:

Sought to be declared the child’s parent
Asked for equal parenting time
Asked for joint guardianship
Asked for child support

Why did this case reach the top Provincial court?

The decision on the parental rights hasn’t been made yet. The judge did say the case had no comparable precedent. Both parties (KB and the couple) presented self-serving accounts and both had rational arguments. The judge, as all family judges do, made a decision about interim visitation based on the best interests of the child. He ruled that KB would not be able to hide her “true feelings” for the child if she had interim visitation. He thus ruled that resuming contact until the case is decided would not be in the child’s best interests.

The decision of who will be the child’s legal parent, however, is expected soon.

Could this type of case happen in Tennessee?

Potentially, yes. Tennessee recognizes two types of surrogacy: “gestational surrogacy where both married intended parents furnish sperm and egg, and traditional surrogacy where the intended father furnishes the sperm and the surrogate relinquishes the child to him and his wife.” In cases of traditional surrogacy, where the surrogate provides her own egg, she retains parental rights of that baby during and after the birth. Even if parents have a surrogacy contract, that contract cannot necessarily force a birth mother to give up her rights.

In cases of gestational surrogacy, the surrogate has no legal rights to the baby, who would biologically be the child of the intended parents.

What does the phrase “in a child’s best interests mean?”

Tennessee considers the following factors when deciding what is in a child’s best interests when it comes to custody and visitation:

It’s tough enough for children to have to understand that their parents won’t be living together anymore. Courts want as much of the rest of their lives to be as close to what it was before the divorce, as is possible. For example, a judge may consider granting primary residential custody to the parent who will remain int eh family home, or within the area of the child’s current school district.
The ability of the parent to be a good parent. The family will review a parent’s past parenting experiences, including accusations of abuse or neglect, a history of abandonment, and other such negative behaviors. Judges also like it when parents make every effort for their child to have a strong relationship with the other parent, so if Mom is trying to alienate the children against Dad, the judge may feel Mom is the not the best caregiver.
Each parent’s disposition to take care of the child. This includes feeding and clothing the child, making sure the child’s educational needs are met, and making sure the child stays healthy. Job security, health insurance, a secure and safe home: all of these basic needs can affect a judge’s decisions.

Other “best interest of the child” factors include:

Which parent has been the primary caregiver
The bond between the parent and child
The emotional, developmental, physical, and mental needs of the child
How the child relates to siblings, other relatives, mentors, physical surroundings, and school
Any evidence of physical or emotional abuse of the child by a parent or anyone else
The character of anyone who lives with or frequents a parent’s home
The preferences of a child (in some cases)
Each parent’s work schedule
Other factors

At the Law Offices of Adrian H. Altshuler & Associates, we represent spouses with children and unmarried parents. In many cases, an agreement can be negotiated between the parents. Sometimes a mediator helps craft an agreement. Sometimes, we use the collaborative divorce process to help forge a parenting plan. To discuss child custody and any other marital issues with an experienced family lawyer, call our office at 615-977-9370 or fill out our contact form to schedule an appointment. We represent clients in and around Franklin, Columbia, and Brentwood.

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