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DOE v. DOE3/20/1998
This dissolution of marriage case involves a custody dispute concerning a minor child who was conceived by artificial insemination between the defendant husband and a surrogate mother (surrogate) whose parental rights and whose then husband's parental rights, if any, have now been terminated. Although the surrogate turned the child over to the plaintiff wife and the defendant upon the birth of the child, and although both parties raised the child, who is now age fourteen, as their daughter, no adoption proceedings were ever instituted by which the plaintiff would have become the adoptive mother of the child.
The trial court, Stanley, J., ruled that it had no subject matter jurisdiction to adjudicate the custody of the minor child incident to the dissolution proceeding because she was not a "`child of the marriage'" within the meaning of our dissolution statutes. The principal issues on appeal involve whether the trial court had subject matter jurisdiction, pursuant to General Statutes § 46b-56, to adjudicate the child's custody, and whether the plaintiff legally may be considered to be a parent of the child for purposes of that adjudication.
The plaintiff and the minor child, acting through her attorney appointed by the trial court, jointly appeal from the judgment of dissolution challenging the trial court's determination that it had no jurisdiction to adjudicate the custody of the child. The defendant also appeals from the judgment challenging the trial court's determination regarding the causes of the marital breakdown, and its awards regarding allocation of the assets of the parties, alimony and attorney's fees. We conclude that: (1) the child is not a child of the marriage within the meaning of our marital dissolution statutes; (2) nonetheless, the trial court had subject matter jurisdiction, pursuant to § 46b-56, to adjudicate the custody of the
child as between the defendant, as the child's father, and the plaintiff, as a third person asserting a claim to custody of the child; and (3) for purposes of that adjudication, under the undisputed facts of this case the statutory presumption afforded by General Statutes § 46b-56b has been rebutted as a matter of law. We also conclude that the trial court's determination regarding the causes of the marital breakdown is supported by the evidence. Accordingly, we reverse the judgment in part and remand the case for a trial on the issue of custody and on the necessarily related financial issues.
The plaintiff brought this dissolution action in January, 1991. In her original complaint, she alleged that she and the defendant had one minor child "issue of their marriage," who was born on April 30, 1983. On February 11, 1991, the plaintiff and the defendant entered into a signed stipulation for temporary orders, without prejudice to the right of either party "to reclaim
all matters to the court so that the court at a later date could have a full hearing" on any of the matters covered by the stipulation. The stipulation provided for joint custody of the child "but with the principal place of residence" of the child with the plaintiff, and also provided that the child would reside with the defendant on certain weekends. This stipulation was approved by the court on the same date.
In June, 1993, however, the plaintiff amended her complaint by deleting the allegation that the child was the child of the marriage, and alleged instead that " he plaintiff and the defendant have been acting as the parents of [the child] since the child's birth. The plaintiff is neither the biological mother, nor has she legally adopted the minor child. The plaintiff has no knowledge whether the defendant is the natural
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