DOE v. DOE

OPINION

This dissolution of marriage case involves a custody dispute concerning a minor child who was conceived by artificial insemination between the defendant husband 1 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. 2 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, 2 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 3 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 4 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. 4 This stipulation was approved by the court on the same date. 4

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 "[t]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 father of said child or not, and the defendant has not yet legally adopted said child to the best of her knowledge." The plaintiff included in her claims for relief orders for sole or joint custody of the child, visitation rights and support. The defendant, in his answer filed in December, 1994, left the plaintiff to her proof regarding her allegation that

she had been acting as the child's parent, denied that the plaintiff did not know whether the defendant was the child's natural father, and admitted the rest of the allegations, namely, that the defendant had been acting as the child's parent, that the plaintiff was neither the biological nor the adoptive mother of the child, and that the defendant had not legally adopted the child. In addition, the defendant, by way of special defenses, claimed that the child was not a child of the marriage and that, therefore, the court lacked jurisdiction "to determine any issues with respect to her in the context of this action." 5

In December, 1993, the defendant filed a petition in the Middletown Probate Court for termination of the parental rights of the surrogate and her now former husband, who was married to her at the time of the child's birth. The defendant also filed a petition in the Probate Court for a determination that he is the father of the child. The Probate Court had not acted on either of these petitions when the trial of this case began in January, 1995. On June 28, 1995, however, the Probate Court granted the defendant's paternity petition and adjudicated him to be the father of the child. On September 6, 1995, the Probate Court granted the petition for termination of the parental rights of the surrogate and her former husband on the ground of abandonment. 6

These orders have not been appealed, and they are, therefore, final.

Meanwhile, however, the trial of this case had been proceeding. After seventeen days of testimony, beginning on January 4, 1995, and ending on June 9, 1995, the trial court, in a memorandum of decision issued on November 15, 1995, found the following: the parties' marriage has broken down irretrievably; there is no prospect of reconciliation; and, therefore, the marriage should be dissolved. The court found further that the plaintiff, who had been born in India while that nation was under British rule, had been married in England to another British subject and had three children from that marriage, all of whom are now more than eighteen years of age. In 1967, the plaintiff came to this country and worked as a companion and housekeeper for the defendant's mother. In 1971, the parties began a relationship, and in April, 1982, the plaintiff obtained a divorce in Florida from her first husband. Both parties desired to have children, although the defendant was determined to have a child with or without the plaintiff's cooperation. The plaintiff, however, had undergone a tubal ligation, and an attempt to reverse it was unsuccessful. The plaintiff also suffered from permanent injuries as a result of an automobile accident in 1972.

The trial court also found that the defendant, through an advertisement in a Connecticut newspaper, sought a surrogate mother to carry and deliver a baby. The court found further that the surrogate responded, that financial arrangements were made, and that, at the surrogate's home in Connecticut with both the defendant and the plaintiff present, the surrogate was "impregnated with the defendant's sperm by use of a syringe

. . . ." 7 The court also found that "[t]he surrogate mother became pregnant"; see footnote 11; and that, throughout the prenatal period the defendant accompanied her to doctors' appointments, where she used the plaintiff's name, social security number and other statistical data regarding the plaintiff. Also, on occasion the plaintiff would accompany the defendant and the surrogate to the doctors' appointments, and on occasion would stuff a pillow in her clothing to simulate the appearance of being pregnant.

The plaintiff and the defendant were married on January 7, 1983, while the surrogate was approximately four months pregnant with the child. At the time of the child's birth on April 30, 1983, the surrogate was admitted to the hospital under the plaintiff's name, social security number and other relevant data. The trial court also found that the defendant supplied the hospital with the pertinent data for the child's birth certificate "under the ongoing ruse that the birth mother was [the plaintiff]." The court found further that, upon discharge from the hospital, the surrogate turned the child over to the plaintiff and the defendant, "who nurtured and raised the child with no further participation by the surrogate mother."

The trial court noted that "[o]f significance is the fact that the surrogate mother was married at the time of the child's birth, although she has since had that marriage dissolved." Noting further the presumption that a child

born during wedlock is the child of the husband, unless the presumption is rebutted by clear and convincing proof; Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982); the court determined that the presumption had not been rebutted by that standard of proof. In this connection, the court noted further that it was undisputed that the child was not the child of the plaintiff and was not, therefore, the "issue of the marriage." The court also noted that there had been no evidence presented during trial that the parental rights of the surrogate or her then husband had been terminated, that blood testing of the defendant and the surrogate showed merely that the defendant could not be excluded as the father of the child but did not conclusively establish his paternity, and that there had been no evidence during trial that any probate court of competent jurisdiction had found that the defendant was the father of the child.

After the conclusion of the trial but before the trial court had issued its decision, the defendant filed two motions to open the evidence to include the two Probate Court judgments regarding the termination of the parental rights of the surrogate and her former husband, and the adjudication of the defendant's parentage of the child. The trial court, however, denied these two motions, and made "its findings based upon the evidence presented during the seventeen days of trial." 8

On the basis of those factual findings, the trial court concluded that it did not have subject matter jurisdiction to enter orders regarding the custody or support of the minor child because she was neither a child "born issue of the marriage," nor a child adopted by both parties or a natural child of one of the parties who had been adopted by the other. See General Statutes § 46b-58. 9 Although its ruling left "a substantial number of issues unresolved regarding" the child, the court determined that "the best interests of the child are not legally sufficient" to overcome what it perceived as the "jurisdictional impasse which has been created by the actions and inactions of the two people she has always considered her parents." The court also rejected the request of the child's attorney to consider the psychological and family relations reports that had been introduced into evidence because, in the court's view, "absent the court's jurisdiction over [the child], such data is irrelevant in the context of the present action."

The trial court, therefore, turned to the merits of the dissolution action, irrespective of any claims regarding the custody of the child and her support. The court found that the parties shared equally in the causes of the breakdown of the marriage. In this connection, the court found that the plaintiff had difficulty controlling her anger, particularly after consuming alcohol, and that the defendant had engaged in physical violence toward the plaintiff. The court found further that communication between them had been strained, "although they appear capable of accommodating each other

when it comes to decisions regarding [the child's] religious education and nurturing in general." It also found, however, that their "inability or unwillingness to subordinate their own hostilities in an effort to properly finalize [the child's] legal status vis-a-vis each of them underscores the breakdown of the marriage." In addition, the court found that the defendant, through inheritance and sound investment practices, had acquired substantial assets, and that the plaintiff had maintained a reasonably stable and fit home environment. The court also found that the plaintiff had limited employment skills that were diminished further as a result of her age and health problems. Accordingly, the trial court rendered a decree dissolving the marriage, 10 from which these appeals followed.

In his initial brief on his appeal from the judgment of the trial court, the defendant challenged: (1) the court's finding that the parties contributed equally to the breakdown of the marriage; (2) the court's award of periodic alimony and the related life insurance order; and (3) the court's order requiring him to pay both the plaintiff's and the child's attorney's fees. In their initial brief on their joint appeal, the plaintiff and the child's

attorney claimed that the trial court had improperly: (1) failed to find that the defendant was estopped from denying that the child was the issue of the marriage; (2) failed to assert jurisdiction over the custody of the child, thus depriving her of her right to equal protection of the law; and (3) failed to consider the best interest of the child in determining that it did not have jurisdiction to determine the custody of the child. Following oral argument in these appeals, we decided, sua sponte, to consider the case en banc; see footnote 1; and to request supplemental briefs by the parties and by the two amici curiae, the American Academy of Matrimonial Lawyers, Connecticut Chapter (academy), and the attorney general of Connecticut, on certain issues. 11

In his supplemental brief, the defendant claimed that: (1) the plaintiff is not and cannot be considered a parent of the child; (2) even if the court were to adopt an "equitable parent" doctrine, the plaintiff would not qualify for that doctrine under the facts of this case; and

(3) under the law of the state, the child is not a "child of the marriage" of the parties. In their supplemental brief, the plaintiff and the child's attorney claimed that: (1) the child is the issue of the parties' marriage because her birth certificate establishes her legitimacy and her status as the parties' child, and because of the legislative intent and policy behind the statutes governing artificial insemination; General Statutes §§ 45a-771 through 45a-779; 12 and (2) the court should recognize the doctrine

of the "equitable parent," and under that doctrine, the court had jurisdiction over the custody of the child. 13

I

It is useful to note first what this case does not involve. It does not involve questions of how, if at all,

to reconcile our family relations statutes, as interpreted by this court, with scientifically new methods of conception that were not available when those statutes were enacted or when those interpretations were issued. Thus, we need not, and do not, in this case confront questions of parentage, under those statutes, resulting from such recent scientific innovations as, for example, in vitro fertilization using donated eggs that are then implanted in a woman's womb; see, e.g., Office of Technology Assessment, Infertility: Medical and Social Choices (1988) p. 255; implantation into a woman's womb of a frozen embryo formed by the sperm and egg of strangers to both the woman and her husband; see, e.g., G. Kolata, "Clinics Selling Embryos Made For `Adoption,'" N.Y. Times, November 23, 1997, p. 1; or other similar innovations in which a woman who gives birth to a child is not the same woman who produced the egg that was ultimately fertilized by a man's sperm. See, e.g., 2 Royal Commission on New Reproductive Technologies, Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (1993) pp. 662-63 (describing various "gestational" surrogacy arrangements). 14 Furthermore, although the facts of this case are certainly unusual, neither the social arrangement by which the child was conceived and

delivered, surrogate motherhood, nor the method of conception, artificial insemination, is new.

Although it has become widespread only in recent decades; H. Ragone, Surrogate Motherhood: Conception in the Heart (1994) p. 194 n.2; surrogate motherhood is a practice with ancient roots. Throughout history couples unable to have children because of the woman's inability to conceive or carry a child to term have arranged for impregnation of another woman with the husband's sperm in order to produce a child for the couple to raise as their own. S. Phillips, "Reproductive Ethics," 4 CQ Researcher 291, 301 (1994). The Bible's Book of Genesis, for instance, records three instances of the practice. Genesis 16 (recounting surrogacy arrangement among Abram, Sarai and Hagar); Genesis 30:1-24 (recounting surrogacy arrangements among Jacob, Rachel and Bilhah, and among Jacob, Leah and Zilpah). Of course, as in the present case, surrogate motherhood today generally involves implantation of the sperm through artificial insemination instead of intercourse. This practice, however, is also neither new nor scientifically advanced.

Artificial insemination involving humans dates back at least to the late 1770s, when the first authoritatively reported use of the technique took place under the direction of an English physician, Sir John Hunter. F. Poynter, "Hunter, Spallanzani, and the History of Artificial Insemination," in Medicine, Science and Culture (L. Stevenson & R. Multhauf, eds., 1968) pp. 97, 100. By the 1890s, artificial insemination had become an established medical specialty in numerous European cities; id., pp. 101-109; and by the 1940s, it had developed into an established treatment for fertility problems in the United States. Note, "The Socio-Legal Problems of Artificial Insemination," 28 Ind. L.J. 620, 620-22 (1953). Essentially, the technique is simple, merely involving substitution of an instrument such as a syringe for the

traditional means of depositing semen into the woman's vagina. D. Wikler & N. Wikler, "Turkey-baster Babies: The Demedicalization of Artificial Insemination," 69 Milbank Q. 5, 8 (1991). It can be performed without the assistance of trained medical professionals, as it was in the present case.

We do not mean to imply that we are insensitive to the interests of the child in this case, in particular, or to the plight of couples who, faced with difficulties in conceiving a child, are required to resort to such recent scientific innovations, in general. Moreover, we do not seek to minimize the difficulties of the legal questions that are presented by this case. Our point here is solely that this case does not present questions involving the meaning of our statutes in the factual context of a scientifically new method of conception. 15

II

We next consider the trial court's denial of the defendant's motion to open the evidence so as to admit the two probate decrees, which conclusively established that the defendant is the father of the child, and that the parental rights of the surrogate and her former husband had been terminated. We conclude that the

court abused its discretion in denying the defendant's motion.

"Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. State v. Levy, 103 Conn. 138, 145, 130 A. 96 [1925]; State v. Chapman, 103 Conn. 453, 479, 130 A. 899 [1925]; King v. Spencer, 115 Conn. 201, 203, 161 A. 103 [1932]; State v. Swift, 125 Conn. 399, 405, 6 A.2d 359 [1939]. Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 [1940]. In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided." (Internal quotation marks omitted.) State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L.Ed.2d 193 (1977).

Deciding this contested marital dissolution case without cognizance of the undisputed facts regarding the paternity of the child and the termination of the potentially competing parental rights, presented a serious danger of a miscarriage of justice. First, those facts undermined the court's conclusion that it had no jurisdiction to consider the custody of the child, because they converted the case from one in which the presumed parents of the child were not before the court, to a case in which at least one conclusively established parent — the defendant — was before the court. Second, relegating the parties to a subsequent habeas corpus action, which the trial court contemplated, would have been unsatisfactory because, even after the close of evidence but before the court decided the case, it should have been apparent that a determination in a subsequent habeas proceeding regarding the custody of the

child would have also required a determination regarding her financial support, either in the habeas proceeding or upon a return to the dissolution action. That determination, in turn, would have necessitated the reworking of the financial orders that the trial court entered in this action regarding the other but inextricably linked financial issues. See Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989) (financial orders in dissolution action involve mosaic of inextricably intertwined issues). We therefore decide this case on the true state of the facts, namely, that the defendant is the biological father of the child, and that the parental rights of the surrogate and her husband have been terminated.

III

We turn next to the following issues, which are raised by the parties, the child and the amici: (1) the viability of the concept of a "child of the marriage" under our dissolution of marriage statute; General Statutes § 46b-56; see footnote 4; and (2) whether that concept deprived the trial court of jurisdiction to adjudicate the custody of the child under the facts of this case. We conclude that, although the phrase "child of the marriage" is no longer contained in § 46b-56, the concept that it embodies, as authoritatively interpreted by decisions of this court, remains implicit in our entire statutory scheme governing marital dissolutions and retains viability by continuing to define who is a parent for purposes of awarding custody in a dissolution action. We also conclude, however, that the jurisdictional limitations that the concept previously had imposed on the trial court operating under that statute have been overtaken by subsequent statutory changes. On the basis of these conclusions, we determine that the trial court had jurisdiction to award custody of the child in this case, as between the defendant, as the father of the child, and the plaintiff, as an interested

third party with a powerful, albeit nonparental, claim to custody.

We preface this inquiry by reaffirming the established proposition that, although the court has broad equitable remedial powers in the area of marital dissolutions; Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975) ("[t]he power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage"); our marital dissolution law is essentially a creature of, and governed by, statute. "The Superior Court's power to grant divorces and thereby dissolve marriages comes from statutory authority, and from such jurisdiction over divorce derives the court's jurisdiction to make and enforce orders for care, custody and education of children. White v. White, 138 Conn. 1, 9, 81 A.2d 450 (1951); LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). . . ." (Citation omitted.) Kennedy v. Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979). Furthermore, "Superior Court orders regarding custody of a minor child in an action for dissolution of a marriage are governed by General Statutes § 46b-56. . . ." Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982). Thus, our task in the present case is not to determine what the equities of the case may say about whether the plaintiff should be considered as a parent of the child, or whether it would be in the child's best interest for the plaintiff to be so considered. To do so would be inconsistent with our established jurisprudence identifying our statutes as the source of the court's power to award custody of children in dissolution cases and interpreting the meaning of parenthood under those statutes. Our task, instead, is to determine, as a matter of statutory interpretation, the relationship between the plaintiff and the child for purposes of the court's power to award custody under § 46b-56.

"The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Id.; Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, 231 Conn. 355, 362, 650 A.2d 147 (1994); United Illuminating Co. v. Groppo, 220 Conn. 749, 755-56, 601 A.2d 1005 (1992)." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431-32, 692 A.2d 742 (1997).

We begin with the language of § 46b-56. 16 It deals with two separate but related situations. The first, and broader, situation is invoked by the first clause of the first sentence of § 46b-56 (a), which provides in relevant part: "In any controversy before the Superior Court as to the custody or care of minor children. . . ." That first clause, unlike the clause that follows it, is not addressed necessarily to the court's dissolution jurisdiction. It grants the court power in "any controversy," not limited to a dissolution action, to determine the custody or care of minor children. The first clause,

therefore, grants the court power to determine custody in, for example, a habeas corpus case involving custody of a minor child. The second clause of the first sentence of § 46b-56 (a), however, is more narrow and specific and provides in relevant part: "and at any time after the return day of any complaint under section 46b-45. . . ." General Statutes § 46b-45 governs the filing of complaints for marital dissolution, annulment or legal separation. 17 Thus, the second clause of the first sentence of § 46b-56 (a) grants the court power to determine custody in a dissolution case.

In either situation, however, the language of the section differentiates between parents of a child and third parties. The second sentence of subsection (a) of § 46b-56 provides that "[s]ubject to the provisions of section 46b-56a, 18 the court may assign the custody of any child

to the parents jointly, to either parent or to a third party." Subsection (a) of § 46b-56 further provides that "[t]he court may also make any order granting the right of visitation of any child to a third party, including but not limited to, grandparents." Furthermore, subsection (c) of § 46b-56 requires the court, in making a support award for "a child," to consider "the respective abilities of the parents to provide support," and to "take into consideration all the factors enumerated in section 46b-84." General Statutes § 46b-84, which is the statutory provision specifically governing the award of support for a minor child in a dissolution, annulment or legal separation case, uses the term "child" and the phrase "child of the marriage" interchangeably. 19 The language of § 46b-56, therefore, by itself and by its specific connection with § 46b-84, strongly suggests that in the marital dissolution context a "child" means a child of the marriage.

This suggestion is buttressed by reference to other, closely related statutes in this area of the law. General

Statutes § 46b-60, 20 which governs the court's power in annulments, provides that "the Superior Court may make such order regarding any child of the marriage and concerning alimony as it might make in an action for dissolution of marriage. The issue of any void or voidable marriage shall be deemed legitimate. Any child born before, on or after October 1, 1976, whose birth occurred prior to the marriage of his parents shall be deemed a child of the marriage." Thus, like § 46b-84, § 46b-60 uses the term "child" and the phrase "child of the marriage" interchangeably. It is highly unlikely that the legislature, in referring to the powers of the court over minor children, intended those powers to be different depending on whether the complaint seeks a dissolution or annulment of the marriage. We can perceive no rationale for such a distinction, and to read our statutes to create one would be inconsistent with the fundamental principle of statutory construction that we read related statutes to form a consistent, rational whole, rather than to create irrational distinctions. See, e.g., In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992) ("`[s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law'");

Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981) ("[w]e make every effort to construe a statutory scheme as a consistent whole"). Similarly, General Statutes § 46b-45a, 21 which governs the situation in which a wife is pregnant during dissolution or annulment proceedings, provides that the "parties may in their pleadings allege and answer that the child born of the pregnancy will or will not be issue of the marriage."

Furthermore, the marital relations statutes consistently draw a linguistic distinction between a "parent" of a child and an interested "third party" with respect to custody of the child. See, e.g., General Statutes § 46b-56 (a) 22 (court may assign custody of child "to the parents jointly, to either parent or to a third party"); General Statutes § 46b-56b 22 (statutory presumption in dispute "involving a parent and a nonparent"); General Statutes § 46b-57 22 (in controversy as to custody of

minor children, if there is "any minor child of either or both parties" court "may allow any interested third party or parties to intervene"); General Statutes § 46b-59 23 (grant of visitation rights with minor child under section "shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted"). This consistent distinction between the rights of parents and third parties further supports our conclusion, drawn from the language of our marital statutory scheme, that the concept of a child of the marriage is implicit in § 46b-56.

The legislative history of § 46b-56 also supports this conclusion. That history indicates that the concept of a child of the marriage has long been embedded in that section, and has been expressed both explicitly, by language such as "children of the marriage," and implicitly, by language such as "children" and "minor children."

Section 46b-56 traces its genealogy to 1837, when the legislature provided for the first time 24 that, incident to

a divorce, the Superior Court could "make such order, as between the parties, for the custody, care and education of the children of the marriage, as such court may deem necessary and proper. . . ." General Statutes (1839) tit. XXIII, § 1 (1837) p. 187. The reference to "children of the marriage" remained in the statute providing for the granting of divorces through the statutory revisions of 1849 and 1866. See General Statutes (1849 Rev.) tit. VII, c. II, § 15; General Statutes (1866 Rev.) tit. 13, c. III, § 38.

In the revision of 1875, the statutes used the phrases "the children" and "minor child of such marriage" interchangeably. In the section providing for awarding custody incident to a divorce, the statute dropped the phrase "of the marriage," and provided that the court may "make any proper order as to custody, care, and education of the children"; General Statutes (1875 Rev.) tit. 14, c. III, § 7; and in the section regarding the support of minor children the statute provided that "the parents of a minor child of such marriage, in need of maintenance, shall maintain it according to their respective abilities. . . ." General Statutes (1875 Rev.) tit. 14, c. III, § 9. There is no indication, however, in the extensive preface to that comprehensive statutory revision that any change in substance was intended by the elimination from one section and the retention in the other section of the phrase "of the marriage," nor can we perceive any reason for such a difference in meaning between the two sections.

In 1883, the legislature enacted Public Acts 1883, c. XXVIII, entitled "An Act concerning the Custody of Children," which provided that in any controversy in the court "between husband and wife as to the custody of minor children of the marriage, the court shall have power to assign the custody of such children to either parent according to its best judgment upon the facts of the case, and upon such conditions and limitations

as it shall deem proper." The legislature amended the act in 1885, providing additional authority in the court to make such awards "when such court is not actually in session. . . ." Public Acts 1885, c. XCIX, § 1. This provision, which contained the language "minor children of the marriage," was carried forward into the 1888 statutory revision, as was the language of the 1875 revision providing, in divorce cases, for orders "as to custody, care, and education of the children. . . ." General Statutes (1875 Rev.) tit. 14, c. III, § 7; General Statutes (1888 Rev.) §§ 2809, 2811. The interchangeable use of the phrases "of the children" and "minor children of the marriage" remained in the statutes through the general statutory revisions of 1902, 1918, 1930, 1949 and 1958. See General Statutes (1902 Rev.) §§ 4558, 4560, 4561; General Statutes (1918 Rev.) §§ 5289, 5291, 5292; General Statutes (1930 Rev.) §§ 5184, 5186, 5187; General Statutes (1949 Rev.) §§ 7337, 7339, 7340; General Statutes (Rev. to 1958) §§ 46-23, 46-24, 46-26. Indeed, it continued until the eve of the extensive amendments to our divorce laws effected by the legislature in 1973. See General Statutes (Rev. to 1972) §§ 46-23, 46-24, 46-26. 25

In 1973, by No. 73-373 of the 1973 Public Acts (P.A. 73-373), the legislature effected an historic revision of our marital dissolution statutes. 26 That legislation introduced certain new concepts to our family law, such as the irretrievable breakdown of the marriage as a ground for dissolution. See General Statutes (Rev. to 1975) § 46-48, now § 46b-51. Throughout that legislation, however, the legislature continued to use various terms — such as "minor children of the marriage," "minor children," and "minor children of the parties" — interchangeably, without any indication, either in the language of the legislation or in its legislative history that different meanings were intended by the slight linguistic differences. 26 Thus, the legislature continued the prior legislative practice of referring to children, in the context of

a marital dissolution case, by terms that both explicitly and implicitly referred to the concept of a child of the marriage. These different linguistic formulations remain scattered throughout our current marital dissolution statutes. See, e.g., General Statutes §§ 46b-51 (a), 46b-53 (a), 46b-54 (a), 46b-56 (a), 46b-57, 46b-60, 46b-61, 46b-62, 46b-66 and 46b-84.

We ordinarily do not infer a legislative intent to change longstanding and fundamental legislative policies without a clear indication of such an intent. See, e.g., State v. Cobb, 234 Conn. 735, 750, 663 A.2d 948 (1995). There is no indication, however, that in the context of a marital dissolution case the legislature meant to eliminate from those statutes the longstanding concept of a child of the marriage. Indeed, the legislative history that does touch on this issue indicates that the legislature assumed that the legislation continued to embody the notion of children of the marriage. See, e.g., 16 S. Proc., Pt. 3, 1973 Sess., p. 1408, remarks of Senator George C. Guidera ("[t]he bill also provides that the court may, not shall, appoint counsel for the

children [of] the marriage"); 16 H.R. Proc., Pt. 4, 1973 Sess., p. 1466, remarks of Representative James F. Bingham ("counsel may be appointed to protect the interests of the children of the marriage"); id., p. 1479, remarks of Representative Alan H. Nevas ("this bill . . . [is] going to provide dignity for the parties involved and it's going to provide supportive measures for the children of these marriages").

Although the statutes have never explicitly defined the contours of the concept of a "child of the marriage," our cases have interpreted that concept in a consistent manner, both before and after the historic 1973 revision. A review of that case law, read in connection with certain other statutory developments, leads us to conclude that the meaning of that concept, in the context of a marital dissolution case, is limited to a child conceived by both parties, a child adopted by both parties, a child born to the wife and adopted by the husband, a child conceived by the husband and adopted by the wife, and a child born to the wife and conceived through artificial insemination by a donor pursuant to §§ 45a-771 through 45a-779. See footnote 16. Those sources also lead us to conclude that, although initially the concept of a child of the marriage imposed jurisdictional limitations on the power of the court to award custody of a minor child who did not fit within that concept, those jurisdictional limitations have been overtaken by statutory amendments that give a dissolution court the power to award custody of such a child to an interested third party. The concept of a child of the marriage, as established by our statutory and interpretive jurisprudence, however, continues to define who is a parent of the child for purposes of the ultimate custody determination.

In LaBella v. LaBella, supra, 134 Conn. 312, the husband and wife were childless, and had discussed adoption. While on a business trip, the husband wrote to

the wife that he had found a baby that they could adopt. The wife told him to bring the baby home, which he did. The next year, the husband disclosed to the wife that the child was, in fact, his child — the issue of an adulterous relationship. Id., 314. In the subsequent divorce action between them, this court held that: (1) divorce is a "creature of statute"; id., 316; (2) the applicable divorce statutes "refer to children of the marriage in terms or by implication"; id.; and (3) the child "is not a child of this marriage." Id. Thus, we concluded that, under the statutory scheme as it then existed, the Superior Court did not have jurisdiction in the divorce action to award custody of the minor child. Id., 316-17. 27

In Morrow v. Morrow, 165 Conn. 665, 345 A.2d 561 (1974), 28 the wife and husband had been married in Scotland in 1964. At the time of the marriage, the wife had a one year old child born out of wedlock. Although the husband had expressed interest in adopting that child, the parties decided that they could not afford an adoption. Instead, in 1965, they followed a Scottish procedure by which the husband, in the wife's presence, swore before a sheriff that he was the child's father, and the child's birth records were then changed to indicate that fact. Id., 667. Thereafter, the husband treated the child as his own. The divorce action, in the Superior Court, took place five years later, in 1970. The trial court granted custody of the child to the husband. Id.

On appeal, this court reversed the judgment of the trial court and concluded that the trial court "lacked

jurisdiction to award custody of [the child] to the [husband]." Id., 670. The court stated that the "trial court had no jurisdiction to award custody of [the child] to the [husband] if she is not his child by paternity or adoption." Id., 668. In addition to LaBella, the court relied on General Statutes (Rev. to 1972) § 46-26a, now § 46b-58, which "expanded the jurisdiction of the Superior Court, by providing that `[t]he authority of the [S]uperior [C]ourt to make and enforce orders and decrees as to . . . custody . . . is extended to children adopted by both parties and any natural child of one of the parties who has been adopted by the other.'" Morrow v. Morrow, supra, 165 Conn. 668-69. The court stated: "Unless [the child] is deemed by law to be a child of the marriage of the [husband] and the [wife], the Superior Court was without jurisdiction over her person." Id., 669. 29 The court determined that "[o]n the undisputed facts of this case and the applicable law, we conclude that [the child] is not the legitimate child of the [husband] and that the court lacked jurisdiction to award custody of [the child] to the [husband]." Id., 670.

Remkiewicz v. Remkiewicz, 180 Conn. 114, 429 A.2d 833 (1980), involved a marital dissolution action between a wife, who had had a minor child by a former marriage, and her husband. During their marriage, the husband had filed an affidavit of parentage of the child, changing her birth certificate to reflect his paternity and changing her last name to his. Id., 116. During the marriage, the child regarded the husband as her father, and he treated her as his child, publicly acknowledging her as such and claiming her as a tax exemption. Id. The attorney general became a party to the dissolution action because the wife had been receiving public assistance, and moved for an order of support against the

husband. Id., 115. The trial court held that it had no jurisdiction to issue such an order because the husband was "neither the natural nor adoptive parent of [the child]. . . ." Id., 116.

This court affirmed. We held that the trial court had no authority "to issue [an order of support] against a husband who was neither the biological nor adoptive parent of the child for whom support was sought." Id., 116-17. We stated that "the power of the Superior Court to dissolve a marriage emanates wholly from statute," and that its "further authority to issue any order as to the custody, care and education of the minor children of the parties, as an incident of the dissolution action, is also governed by statute." Id., 117. We then noted that authority "exists, under General Statutes [§ 46b-58] . . . to order support for minor children, including children adopted by both spouses and natural children of one spouse who are adopted by the other." Id. The court also stated that the duty of support "is one imposed on parents," and that the husband was not the child's "parent because he was not her biological father, he was not her father by adoption, nor was he adjudged to be her father by" any of the statutory paternity provisions. Id. Finally, the court confronted the state's public policy argument based on the husband's written acknowledgment of paternity. The court stated: "In this case, however, public policy cuts two ways. The adoption statutes . . . express a legislative intent that no person shall acquire parental status unless certain formalities are observed. A parent has rights as well as duties. If a stepfather could acquire parental rights through the simple expedient of changing his stepchild's birth certificate, all sorts of mischief could result." Id., 120.

These cases stand for several propositions. First, the court's power to adjudicate custody derives from statute, and cannot be expanded by equitable concerns.

Second, the concept of "child of the marriage" defines who is a parent for purposes of awarding custody in a dissolution action. The child of the marriage and the parent of the child are two sides of the same coin. Third, that concept derives from interpretations of the relevant statutes and not from common-law adjudication by this court. Thus, it confines the meaning of parentage to a child conceived by both of the parties, 30 or to a child who either had been adopted by both parties or was a natural child of one party who had been adopted by the other. 30 Fourth, under these cases, the concept of "child of the marriage," and its corresponding definition of parentage, imposed jurisdictional limitations on the trial court's power to enter custody orders in dissolution cases. If the child was not a "child of the marriage" — that is, if both parties were not parents of the child, within the meaning of our statutes — the court had no jurisdiction to render such orders.

The first three of these propositions remain part of our dissolution jurisprudence. In the absence of some powerful reason to overrule those precedents and a principled doctrine with which to replace them — particularly given that they have long been in existence without legislative disapproval — we would not be justified in doing so. See Conway v. Wilton, 238 Conn. 653, 682-83, 680 A.2d 242 (1996) (Peters, C.J., dissenting) ("[o]nce an appropriate interval to permit legislative

reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision . . . especially . . . when the precedent involved concerns the interpretation or construction of a statute" [citation omitted; internal quotation marks omitted]).

The fourth proposition, however, namely, that the definition of parenthood imposes a jurisdictional limitation on a dissolution court with regard to custody determinations, stands on a different footing. That proposition has been overtaken by legislation enacted as part of the 1973 revision of the dissolution statutes.

Prior to P.A. 73-373, although our dissolution statutes gave the court the jurisdiction to award to a third party visitation rights regarding a child of the marriage; General Statutes (Rev. to 1972) § 46-23; 31 they limited the court's jurisdiction to award custody of such a child to the parents of the child. General Statutes (Rev. to 1972) § 46-24; 31 Michaud v. Wawruck, 209 Conn. 407, 413, 551 A.2d 738 (1988) ("[o]ur statutes recognize that visitation encompasses considerations that differ from those that govern custody"). These cases reflected that limitation. 31

Section 15 of P.A. 73-373, however, eliminated that limitation by expanding the Superior Court's jurisdiction to include the power to award custody of a child of the marriage to a third party. As codified in General

Statutes (Rev. to 1983) § 46b-56, after having been amended by No. 80-29 of the 1980 Public Acts 32 and No. 81-402 of the 1981 Public Acts, 32 that legislation provides in relevant part: "Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. . . ." (Emphasis added.)

The legislative history of P.A. 73-373 supports the conclusion that this language was intended to expand the court's jurisdiction in regard to custody orders in a dissolution case. See 16 H.R. Proc., supra, p. 1464, remarks of Representative Bingham ("[t]he only change [made by] the bill . . . in the area of custody is that the court is given the right to assign custody to someone other than a parent if it is in the best interests of the children").

In Manter v. Manter, 185 Conn. 502, 441 A.2d 146 (1981), we considered the question of third party intervention to seek custody of a child in a dissolution case pursuant to § 46b-57. 33 That section procedurally supplements the third party provision of § 46b-56, by authorizing, although not requiring, the formal intervention in a dissolution case of an interested third party whose interest may not already be before the court. Cappetta v. Cappetta, 196 Conn. 10, 12-15, 490 A.2d 996 (1985). Observing that the court's paramount consideration in a custody matter is the child's welfare; Manter v. Manter, supra, 507; we stated that the court

may employ a flexible test in determining the varieties of interest that would authorize such an intervention, that those interests would not necessarily be confined to the traditional nuclear family model, and that they could include "such nontraditional parties as stepparents where the child's welfare dictated that result." Id., 508. Similarly, we have read Manter as indicating that "the [intervening] movant's status as a former adoptive parent would not otherwise have been a disqualification automatically barring him from custody in an appropriate case." Cappetta v. Cappetta, supra, 14. We have also recognized that, for purposes of third party custody and visitation determinations, "[t]raditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents," and we should not "assume that the welfare of children is best served by a narrow definition of those whom we permit to continue to manifest their deep concern for a child's growth and development." Michaud v. Wawruck, supra, 209 Conn. 415.

The foregoing analysis demonstrates that: (1) the plaintiff is not a parent of the child within the well established definition of that term in our marital dissolution law; (2) she is, however, a third party who comes well within the ambit of § 46b-56 for consideration as a third party claimant to custody of the child; and (3) there is no jurisdictional barrier to that consideration by the trial court. The trial court's conclusion, therefore, that it had no jurisdiction to consider the custody of the child was flawed, and the case must be remanded to that court for full consideration of the merits of the custody dispute, under the appropriate standards.

Before addressing those standards, however, we briefly and explicitly address certain of the contentions of the parties, the amici, and the concurring and dissenting opinion. First, implicit our analysis is that

we reject the "equitable parent" doctrine. 34 Using purely equitable concerns to reformulate the definition of parentage under our dissolution statutes would be inconsistent with our entire jurisprudence in the area of marital dissolution, which, as discussed, locates the source of judicial power in those statutes, and not in the court's common-law powers of equity. Although, as we have stated, the court has broad equitable powers under those statutes; see Pasquariello v. Pasquariello, supra, 168 Conn. 585; it is clear that those powers concern the court's authority to fashion appropriate remedies, and they have never been construed to permit the court to define parentage. Indeed, in both LaBella and Morrow, the unsuccessful adult who sought custody would have qualified under the most prominent formulation of that doctrine; see footnote 45; but those claims to custody were rejected by this court as a matter of statutory interpretation. Furthermore, acceptance of the equitable parent doctrine would also

be inconsistent with our statutory scheme for adoption. See General Statutes §§ 45a-706 through 45a-765. A court is not at liberty to bestow parental status independent of that scheme. Remkiewicz v. Remkiewicz, supra, 180 Conn. 120 ("adoption statutes . . . express a legislative intent that no person shall acquire parental status unless certain formalities are observed"). 35 Finally, as we explain further in part IV of this opinion, where, as in this case, there is a custody disagreement between a parent and an interested third party with a powerful claim to custody, our statutes afford sufficient flexibility and discretion to the trial court to recognize that claim,

without the necessity of creating the legal fiction of an "equitable parent."

We also reject the claim of the plaintiff and the attorney for the child, which the academy joins; see footnote 17; that the defendant is estopped from denying that the child is the issue of the marriage. In Morrow v. Morrow, supra, 165 Conn. 669, we rejected, as not supported by the record, the trial court's determination that the husband had been estopped from recanting his declaration of parentage before the Scottish sheriff. In doing so, we noted that estoppel requires proof of two facts: (1) misleading conduct by one party; and (2) detrimental reliance thereon by the other party. Id. Likewise, the record in the present case does not support a finding of estoppel. Despite the plaintiff's claim in her brief that she did not pursue an adoption of the child because of the defendant's assurance to her that she was the child's mother, there is no such evidence in this record from which such an inference could be drawn. 36

The plaintiff's claim that the trial court's conclusion that it lacked jurisdiction deprived her of equal protection of the laws must fall because of our conclusion that the trial court did have jurisdiction to adjudicate the child's custody. On remand, the trial court will be required to exercise its custody jurisdiction.

The plaintiff's claim that the trial court was required by the child's best interests to adjudicate her custody is simply contrary to basic jurisprudential notions. The court must first have jurisdiction in regard to the custody determination before deciding where the child's best interests require custody to be located. In any event, on remand, the child's best interests will be the critical factor for the court's consideration in that custody determination.

We also reject the claim of the plaintiff and the child's attorney that the child's birth certificate conclusively established that the plaintiff is her mother. One does not gain parental status by virtue of false information on a birth certificate. See Remkiewicz v. Remkiewicz, supra, 180 Conn. 120 ("[i]f a stepfather could acquire parental rights through the simple expedient of changing his stepchild's birth certificate, all sorts of mischief could result").

Finally, we reject the reliance of the plaintiff and the child's attorney on §§ 45a-771 through 45a-779. 37 Those statutes govern the rights and status of children born

through, and husbands and wives who consent to, the process of "heterologous artificial insemination, or artificial insemination with the semen of a donor," referred to as "A.I.D." General Statutes § 45a-772. They provide that "children born as a result of A.I.D. shall be deemed to acquire, in all respects, the status of a naturally conceived legitimate child of the husband and wife who consented to and requested the use of A.I.D." General Statutes § 45a-774.

Recognizing that the plaintiff in this case does not come within the terms of these statutes, the plaintiff and the child's attorney argue that the policy and legislative intent behind them support the plaintiff's claim of parentage. We disagree. These statutes are intended to codify, with respect to a child conceived as a result of A.I.D., "the public policy of this state . . . that every child born to a married woman during wedlock is legitimate." General Statutes § 45a-771 (a). Thus, to the extent that these statutes could be considered as having a public policy effect beyond their terms, that policy would have legitimized the child as the child of the surrogate and her then husband; it could not have created parentage in the plaintiff.

We summarize the main points of the dissenting portion of the concurring and dissenting opinion in order to respond to it. First, the concurring and dissenting opinion agrees that, as a matter of statutory interpretation, the concept of "child of the marriage" is incorporated into § 46b-56 (a). The analysis of that opinion diverges from ours, however, starting with the proposition that, historically, the concept of the "child of the marriage," as incorporated in § 46b-56 (a), was "to distinguish between illegitimate and legitimate offspring." That opinion then asserts that "[c]hildren who otherwise might have been deemed illegitimate were presumed at common law to be `children of the marriage' if they were born to the wife during the course of the

marriage or, if born prior to the marriage, they were adopted by the nonbiological parent." (Emphasis added.) For these propositions, the opinion cites several authorities, principally Morrow v. Morrow, supra, 165 Conn. 668-69, 84 A.L.R.4th 655, 679-84 (1991), note, "Presumption of Legitimacy of a Child Born in Wedlock," 33 Harv. L. Rev. 306 (1919-20), and J. Ayer, Jr., "Legitimacy and Marriage," 16 Harv. L. Rev. 22, 23 (1902-1903).

The concurring and dissenting opinion then derives from the history of the dissolution statutes a legislative recognition "that there are certain factual circumstances under which a child who is the biological or adopted child of only one of the parties to the marriage is nonetheless considered a `child of the marriage' for the purposes of determining . . . custody." That opinion then asserts that the "historical significance" of the concept of the child of the marriage "obliges the court to expand the term `child of the marriage' beyond the gatekeeping function assigned to it by the majority." The concurring and dissenting opinion concludes that, although § 46b-56 continues to require that the subject of a custody dispute be a "child of the marriage," it "no longer requires that in every case the child be the biological or the adopted child of both parties to the marriage."

The concurring and dissenting opinion then attempts to explain away the conflict between this conclusion and Remkiewicz v. Remkiewicz, supra, 180 Conn. 114, Morrow v. Morrow, supra, 165 Conn. 665, and LaBella v. LaBella, supra, 134 Conn. 312, by distinguishing those cases on the basis that their holdings "are inapposite to the facts of this case, in which the parties were married to raise this child. . . ." 38 (Emphasis added.)

In this connection, the concurring and dissenting opinion also asserts that "[b]oth the plaintiff and the defendant intended from the time the child was conceived that they should be the only mother and father the child ever knew." (Emphasis added.) Finally, the opinion concludes that the child should be considered a child of the marriage because, "[a]lthough the parties failed to finalize their relationship with the child through the proper probate procedures," it is clear that they intended that the plaintiff should have all the rights and responsibilities of a mother.

The reasoning of the concurring and dissenting opinion is flawed. First, there is little evidence for its historical assertion that the purpose of the concept of the child of the marriage, as used in § 46b-56 (a), was to distinguish between legitimate and illegitimate children.

For example, the reference to Morrow is unavailing in this regard. Although Morrow did, in quoting from LaBella v. LaBella, supra, 134 Conn. 316, refer to the fact that the mother is the guardian of the person "`of an illegitimate child'"; Morrow v. Morrow, supra, 165 Conn. 668; that hardly establishes the proposition that, when the legislature started using the term "child of the marriage" in 1837, its purpose was to distinguish between legitimate and illegitimate children. Moreover, the reference in the concurring and dissenting opinion to Morrow v. Morrow, supra, 669, to support its assertion that "[c]hildren who otherwise might have been deemed illegitimate were presumed at common law to

be `children of the marriage' . . . if born prior to the marriage, they were adopted by the nonbiological parent," is erroneous. (Emphasis added.) In fact, in discussing children born prior to the marriage and subsequently adopted, the court referred, not to any common-law principle regarding legitimacy, but to then General Statutes § 46-26a. The court noted that "[o]ur present statutes have expanded the jurisdiction of the Superior Court, by providing that `[t]he authority of the superior court to make and enforce orders and decrees as to . . . custody . . . is extended to children adopted by both parties and any natural child of one of the parties who has been adopted by the other.' General Statutes § 46-26a." Morrow v. Morrow, supra, 668-69.

If anything, this reference reinforces our view that the concept of parentage under our dissolution statutes has developed legislatively, rather than by a process of case-by-case judicial lawmaking based on equitable principles. Indeed, the concurring and dissenting opinion cannot cite one case, because there is none, in our more than 160 years of statutory dissolution jurisprudence, in which the court, rather than the legislature, has expanded the definition of a child of the marriage. Additionally, whenever such a judicial expansion has been sought, the court has reiterated the principle that our power over custody matters derives from the statutes.

Moreover, the other authorities that the concurring and dissenting opinion marshals for its historical assertion do not strongly support it. Although the two Harvard Law Review articles cited in that opinion discuss the law of legitimacy of children in great detail, neither of them refers in any way to the concept of a "child of the marriage." 39 See note, supra, 33 Harv. L. Rev. 306; J. Ayer, Jr., supra, 16 Harv. L. Rev. 22.

Second, even if we were to accept the assertion that, originally, the legislative purpose of the concept of the child of the marriage was to differentiate between legitimate and illegitimate children, that does not mean, as the concurring and dissenting opinion suggests, that we are free to jettison what has become its established meaning and jurisprudence, and to supply a new meaning contrary to that jurisprudence. As we have indicated, the history of our dissolution statutes makes clear that, despite what might be the historical origins of the concept of a child of the marriage, its statutory function for many decades has been to define who is a parent for purposes of determining custody in a dissolution action. That history also establishes that our power to adjudicate custody derives from statute and not from considerations of equity, and that, despite the suggestion of the concurring and dissenting opinion to the contrary, the meaning of the concept of a child of the marriage has been the result of statutory amendment and interpretation and not common-law adjudication unfettered by statutory interpretation. Indeed, it was not until 1976, when the legislature enacted what is now the last sentence of § 46b-60, 40 that a child born to an unmarried couple who later married was "deemed a child of the marriage." Thus, we disagree with the contention in the concurring and dissenting opinion that, despite this history, we are "obliged" — the opinion does not explain the source of this obligation — to expand the concept beyond its established meaning.

Third, the factual underpinnings of the conclusion in the concurring and dissenting opinion that the child in this case is a "child of the marriage" is not supported by the record. That opinion brings this child within that language by its factual assertions that "the parties were married to raise this child," and that "the [parties] intended from the time the child was conceived that they should be the only mother and father the child ever knew." There are no such findings by the trial court, however, and neither the evidence nor the court's findings necessarily imply these facts. The court found that, although both parties desired to have children, "the defendant clearly expressed his determination to have a child, with or without the plaintiff's cooperation." (Emphasis added.) Consistent with that determination, the court also found that it was the defendant who sought the surrogate through the newspapers. Furthermore, it is undisputed that the parties' marriage did not take place until approximately four months after the child was conceived. Thus, it cannot be definitively said on the basis of this record that the purpose of this marriage was to raise this child, or that when the child was conceived both the plaintiff and the defendant intended that they would both be the only parents that the child would ever know. Although those would have been permissible inferences, had the court drawn them, they are not necessary inferences from either the findings or the undisputed evidence. We simply do not know what specifically was in the defendant's mind, regarding marriage to the plaintiff, when the artificial insemination took place.

Indeed, the reliance of the concurring and dissenting opinion on these assertions — that the purpose of this marriage was to raise this child and that, therefore, this is a "child of the marriage" — demonstrates the fragility of the reasoning of that opinion. Had the parties been married and without children for two or three years,

and then decided that they wanted a child and went through the same surrogacy arrangement and child rearing, under the rationale of the concurring and dissenting opinion it could not be said that the parties were married in order to raise the child. Presumably, therefore, under that scenario the child would not be a "child of the marriage." It is difficult to see, however, why in principle that child would be any more or less a child of the marriage than the child in this case. This inconsistency demonstrates that the concurring and dissenting opinion really relies on its own unarticulated version of the equitable parent doctrine, despite its disavowal of that doctrine.

Fourth, the concurring and dissenting opinion passes over the pertinence of our adoption statutes with only a passing reference to the parties' "fail[ure] to finalize their relationship with the child through the proper probate procedures." Our adoption statutes embody significant substantive and procedural requirements that the legislature has mandated must be met before one may become an adoptive parent. See General Statutes §§ 45a-706 through 45a-765. These requirements rest on important public policies for the protection of all concerned — the child, the biological parents and the adoptive parents. The concurring and dissenting opinion, through what may be a laudable desire to supply a "legal" mother for this child for purposes of § 46b-56, ignores those statutes and the public policies on which they rest, and in effect would validate a kind of de facto adoption in this case. We decline to do so.

At bottom, despite its disavowal of the equitable parent doctrine, the concurring and dissenting opinion is most plausibly read as an unarticulated application of that doctrine. By focusing on the admittedly sympathetic facts of this particular marriage and this particular child, while simply sweeping away our established law and the history of dissolution and custody matters,

the concurring and dissenting opinion would transform the legislative concept of the child of the marriage into the judicial concept of the equitable parent. For the reasons articulated elsewhere in this opinion, we decline to follow that path.

IV

Having concluded that the trial court had jurisdiction to adjudicate the custody of the child as between the defendant, as the child's father, and the plaintiff, as a third party asserting a claim to custody, giving due regard to the statutory presumption afforded by § 46b-56b, we turn to a discussion of the potential effect of that statutory presumption in this case, in order to give some guidance to the trial court on remand. Section 46b-56b provides: "In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody."

"This statute was enacted to counteract the holding of McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L.Ed.2d 813 (1985), which held that [General Statutes] § 45-43 (now § 45a-606) 41 did not create a presumption that a surviving parent is entitled to preference in a custody dispute." Bristol v. Brundage, 24 Conn. App. 402, 405, 589 A.2d 1 (1991); see also Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980) (in custody contest between parent and third party, constitutional right to family integrity requires presumption in favor of parent).

"The presumption, which is one of public policy, places upon the nonparent the burden of proving sufficient facts to put the presumed fact [that it is in the best interest of the child to be in the custody of the parent] into issue." (Internal quotation marks omitted.) Garrett's Appeal from Probate, 44 Conn. Sup. 169, 183, 677 A.2d 1000 (1994), aff'd, 237 Conn. 233, 676 A.2d 394 (1996). "The presumption . . . does not shift the burden of proof in a custody dispute between a parent and a nonparent, but makes that burden easier [for the parent] to sustain because it gives the parent an initial advantage. [H. Clark, Law of Domestic Relations (1968) § 17.5, p. 591]." Evans v. Santoro, 6 Conn. App. 707, 711 n.3, 507 A.2d 1007 (1986). So long as due regard is given to the presumption, however, "[t]he best interests standard remains the ultimate basis of a court's custody decision." (Internal quotation marks omitted.) Garrett's Appeal from Probate, supra, 183; Hao Thi Popp v. Lucas, supra, 182 Conn. 551.

As these authorities make clear, the presumption does not mean that the nonparent must, in order to rebut it, prove that the parent is unfit. It means that the parent has an initial advantage, and that the nonparent must prove facts sufficient to put into issue the presumed fact that it is in the child's best interest to be in the parent's custody. Once those facts are established, however, the presumption disappears, and the sole touchstone of the child's best interests remains irrespective of the parental or third party status of the adults involved. In that instance, then, neither adult — the parent or the third party — enjoys any advantage or suffers any disadvantage as a result of his or her parental or third party status.

We next address, therefore, the effect of the presumption, if any, in this case. Ordinarily, that would be a

question that we would leave to the trial court for its factual determination in the first instance. Under the extraordinary circumstances of this case, however, we conclude, for two reasons, that it is appropriate to address the effect of the presumption in the course of this appeal.

First, it is clear to us that, based on the undisputed facts of this case, the presumption has been sufficiently rebutted. Put another way, were the trial court upon our remand to fail to determine that the presumption was sufficiently rebutted, the undisputed facts of this case would compel us to conclude that its determination would be clearly erroneous. Those facts are as follows. The defendant participated in the public ruse that the plaintiff was the child's birth mother. Furthermore, for the nearly first eight years of the child's life, before the initiation of this action, the plaintiff and the defendant together raised and nurtured the child. In addition, for the more than seven years while this case has been litigated, in the trial court and on appeal, the parties have, by virtue of a court-approved stipulation, shared joint custody of the child, with the principal residence of the child being with the plaintiff. Under these facts, the trial court would abuse its discretion if it were to determine that the statutory presumption were not rebutted, under the standards for that determination that our case law articulates. Thus, we conclude that, as a matter of law, the presumption has been rebutted in this case.

Second, as we have noted, this case is now more than seven years old. The question of the ultimate custody of the child has been left in limbo for an extraordinary length of time. Under these circumstances, it is incumbent on us to shorten, to the extent possible, the remaining time it will take to resolve that question. By addressing and disposing of the question of the remaining effect, if any, of the statutory presumption

in this case, we exercise our sound appellate discretion so as to eliminate at least one significant question for determination following our remand.

On remand, therefore, the trial court will be required to adjudicate the custody of the child, without regard to the statutory presumption in favor of the parent afforded by § 46b-56b, based on the ultimate factor of the child's best interest. There was ample evidence in this record that, if credited, would have been sufficient to justify an award of joint custody to both parties. 42

V

We next consider the claims of the defendant that the trial court improperly: (1) found that the parties contributed equally to the breakdown of the marriage; (2) awarded periodic alimony and certain related life insurance benefits to the plaintiff; and (3) required the defendant to pay the attorney's fees of the plaintiff and the minor child. With respect to the factual claim of the parties' contribution to the causes of the marital breakdown, it is not necessary to detail the evidence supporting the court's finding. Suffice it to say that we have examined the entire record with care, and are satisfied that the finding is supported by the evidence and must stand.

In light of our conclusion, however, that the court will be required to adjudicate the custody of the child on remand, we decline to consider the defendant's

financial claims. The court's custody determination may also necessitate an award of child support, and in light of the fact that the court's financial awards ordinarily constitute a mosaic; Sunbury v. Sunbury, supra, 210 Conn. 175; the child support award may alter the other financial awards. Thus, it would serve no useful purpose to review those awards at this stage of the litigation.

With whom BERDON and PETERS, Js., join.

The primary issue in these appeals is whether the trial court, in an action for the dissolution of a marriage, has jurisdiction to award custody of a minor child to the plaintiff wife, when that child was born to a surrogate mother (surrogate) who, with the consent and cooperation of the plaintiff wife, had been artificially inseminated with the defendant husband's sperm. This is a case of first impression for this court, and it requires us to come to terms with changing family structures — an area that has become increasingly complex with each new scientific innovation in the field of human reproduction. The majority decides, and I concur, that the trial court had jurisdiction over the child, thereby enabling it to decide issues of custody and support. The majority, however, is content to treat the plaintiff as a third party for purposes of making that determination. It is that assessment that causes me to dissent.

In June, 1993, the plaintiff filed for the dissolution of her marriage to the defendant. In addition to her claims

for financial support, relying on General Statutes § 46b-56, 43 she requested sole or joint custody of a minor child who was ten years old at the time of the complaint. The plaintiff acknowledged in her amended complaint that she was not the child's biological mother and that she had not adopted the child, but asserted at trial that she should be considered a parent for the purposes of determining custody because she and the defendant, the child's biological father, had acted as the child's parents from the time of the child's birth.

The defendant moved to dismiss the plaintiff's complaint, on the ground that because the minor child was not a child of the marriage, the trial court lacked jurisdiction. Thereafter, the plaintiff amended her complaint to add a second count invoking third party status under General Statutes §§ 46b-57 44 and 46b-59. 44

After the close of evidence, but prior to judgment, the defendant moved to open the evidence and requested that the trial court take judicial notice of two Probate Court judgments, the first declaring the defendant's paternity of the child and the second terminating the parental rights of the surrogate and her husband. The trial court chose not to open the evidence

and admit the Probate Court judgments, reasoning that it would not be a miscarriage of justice to reject the offer of evidence.

In a memorandum of decision dated November 15, 1995, the trial court concluded that because the minor child was not a child of the marriage, had not been adjudicated the natural child of the defendant, and had not been adopted by either party, the court had no jurisdiction to decide the custody issues. 45

The trial court found the following facts, which are not disputed by the parties. The plaintiff and the defendant were married in 1983. They had known each other since 1967, and had begun their relationship in 1971. Both parties wanted to have children. The plaintiff had been married once before, and was the mother of three adult sons. Prior to this second marriage, the plaintiff had undergone tubal ligation and an attempt to reverse that procedure had been unsuccessful. The plaintiff also suffered from a partial disability as a result of an automobile accident in 1972, which prevented her from carrying a pregnancy to term. Prior to the parties' marriage, with the plaintiff's knowledge and consent, the defendant placed a newspaper advertisement seeking a woman willing to bear a child for the couple. The surrogate answered the advertisement and agreed to be impregnated with the defendant's sperm. The actual insemination, by syringe, took place at the surrogate's home with both the defendant and the plaintiff present.

Although the surrogate testified that she had become pregnant after this procedure, the trial court declined to find that the defendant was the child's biological father because at the time of trial there had been no adjudication of paternity by the Probate Court.

Both the defendant and the plaintiff assumed the roles of parents from the very beginning of the surrogate's pregnancy. Throughout the prenatal period, the surrogate used the plaintiff's name, social security number and statistical information for all birth records and doctor's visits. At times, both the defendant and the plaintiff escorted the surrogate to the doctor's office. During the surrogate's pregnancy, the plaintiff went so far as to stuff pillows underneath her clothing in order to appear pregnant. At the time of delivery, the surrogate was admitted to the hospital under the plaintiff's name. A certified copy of the child's birth certificate bears the names of the plaintiff and the defendant as the child's mother and father. According to the birth certificate, the defendant supplied this information to the hospital authorities. Upon release from the hospital, the surrogate surrendered custody of the baby to the plaintiff and the defendant, who, together, proceeded to raise the child with no further participation by the surrogate. Neither the plaintiff nor the defendant formally adopted the child.

I

I agree with the majority that the trial court abused its discretion in refusing to admit the Probate Court judgments. "`Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. State v. Levy, 103 Conn. 138, 145, 130 A. 96 [1925]; State v. Chapman, 103 Conn. 453, 479, 130 A. 899 [1925]; King v. Spencer, 115 Conn. 201, 203, 161 A. 103 [1932]; State v. Swift, 125 Conn. 399, 405,

6 A.2d 359 [1939].' Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 [1940]. In the ordinary situation where `a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.'" State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L.Ed.2d 193 (1977).

In its memorandum of decision, relying on the presumption that a child born to a married woman is the child of her husband; Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982); the trial court assumed that the surrogate and her husband could claim parental rights. The trial court stated that no "clear, convincing and satisfactory proof" had been offered to prove that the minor child was not issue of the surrogate's marriage. The trial court, in essence, found that neither the plaintiff nor the defendant could claim parental status and, accordingly, concluded that the child could not be issue of the marriage between the plaintiff and the defendant. Therefore, the trial court concluded that it had no jurisdiction under § 46b-56 to determine the custody issues. The trial court so concluded even though it had been offered proof of the defendant's paternity in the defendant's motion to open the evidence.

The trial court further stated in its decision that neither party was prejudiced by the refusal to open the evidence, because "[a] dissolution action is not the only vehicle by which an individual may petition our courts for an order of custody based upon the best interests of the child." It went on to suggest that the appropriate means by which the parties might seek custody was a habeas petition pursuant to General Statutes § 46b-1

(8). 46 I disagree with the trial court's finding as to prejudice.

Had the trial court admitted the Probate Court judgments, the entire posture of the case would have changed and the trial court would have had jurisdiction. Neither the surrogate nor her husband would have had any standing to participate in the outcome of this case. The defendant would have been allowed to proceed under § 46b-56 as the natural father of the child, and the plaintiff, at the very least, would have been able to proceed as a third party under § 46b-57 as pleaded, without having to institute separate proceedings.

Of even greater significance is the fact that the trial court's ruling has left the minor child in judicial limbo. 47 The defendant has been adjudicated to be the child's

father, any parental rights the surrogate may have had have been terminated, the plaintiff, the only "mother" the child has ever known has been adjudicated a stranger, and, although the parties currently share custody as part of a stipulated agreement, the child's living arrangements are perpetually in doubt. In light of the child's independent interest in continuity and stability in family life; Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); the trial court had a heightened obligation to consider all pertinent information available to it.

Therefore, I agree with the majority that the trial court abused its discretion in failing to open the evidence in order to admit the two Probate Court judgments. The defendant's failure to act earlier should not be used to defeat the plaintiff's claim of jurisdiction, when to do so would greatly affect the lives and the rights of the other parties. Indeed, it is the threat of prejudice to the other parties that underlies the rule that a trial court may, in its discretion, refuse to open the evidence. State v. Chapman, supra, 103 Conn. 479 ("trial court may, in the exercise of its discretion . . . permit additional evidence to be introduced, so long as the rights of the parties are fairly protected"). I now turn to the merits of the case and my disagreement with the majority.

II

After a careful review of the arguments and theories presented by the parties and the amici, as well as pertinent authority from other jurisdictions and from scholarly commentary, I agree with the majority that: (1) the trial court had jurisdiction to determine the custody of the minor child pursuant to § 46b-56; and (2) that in the marital dissolution context in general, and in § 46b-56 specifically, a "child" means a "child of the marriage." I believe, however, unlike the majority, that the

meaning of that concept is not limited to a child conceived by both parties, a biological child of one parent who has been adopted by the spouse, and a child conceived through artificial insemination as recognized under General Statutes §§ 45a-771 through 45a-779. Under the specific facts of this case, it is consistent with the historical underpinnings of the statutory requirement to conclude that the parties' minor child is a child of the marriage. I would conclude, therefore, that because the child is a child of the marriage and because the plaintiff is a party to that marriage, the plaintiff must be considered a "parent" for the purposes of determining the child's custodial arrangements under § 46b-56 without regard to the presumption regarding custody as set forth in General Statutes § 46b-56b. 48

"The process of statutory interpretation involves a reasoned search for the intention of the legislature.

. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431-32, 692 A.2d 742 (1997).

At issue in this case is the concept that the minor child be the "child of the marriage." As the majority points out, the revisions of § 46b-56 and its predecessor statutes have been interpreted by this court to confine the jurisdiction of the Superior Court to determine the custody of children to only those children who fit the descriptor "child of the marriage." Remkiewicz v. Remkiewicz, 180 Conn. 114, 117, 429 A.2d 833 (1980); Morrow v. Morrow, 165 Conn. 665, 668-69, 345 A.2d 561 (1974); LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). The plaintiff has claimed that, under the facts of this case, the child must be considered a child of her marriage to the defendant. The defendant contends, and the majority agrees, that the child is not a child of the marriage. I agree with the plaintiff and would conclude that because our past decisions were based on facts not analogous to those in the present case, and because those decisions fail to explain adequately the textual and historical significance of the phrase "child of the marriage," they provide little support for the defendant's argument and have little controlling effect on our decision in this case.

The descriptor "child of the marriage" typically has been used as a means by which to distinguish between

illegitimate and legitimate offspring. Morrow v. Morrow, supra, 165 Conn. 668. Children who otherwise might have been deemed illegitimate were presumed at common law to be "children of the marriage" if they were born to the wife during the course of the marriage or, if born prior to the marriage, they were adopted by the nonbiological parent. Id., 669. This presumption of legitimacy shifted the burden of persuasion to the proponent of illegitimacy; Holland v. Holland, 188 Conn. 354, 358, 449 A.2d 1010 (1982); who was required to present "clear, convincing and satisfactory proof" that the husband was not the father of the child. Schaffer v. Schaffer, supra, 187 Conn. 226. Absent such proof, a child born to the wife during the course of the marriage has been considered a child of the marriage, even though the marriage itself took place after the child was conceived. See annot., 84 A.L.R.4th 655, 679-84 (1991).

The traditional explanation for this rule has rested in the concepts of bastardy and inheritance. Note, "Presumption of Legitimacy of a Child Born in Wedlock," 33 Harv. L. Rev. 306 (1919-20) ("[t]his [is] in accord with the strict notions of the common [law], and [is] probably based upon regard for property rights, a bastard being incapable of inheriting or of having any heirs except those of his own body"); see J. Ayer, Jr., "Legitimacy and Marriage," 16 Harv. L. Rev. 22, 23 (1902-1903) ("since it is necessary that the heir should be one whose right could be ascertained . . . marriage, an act capable of proof, could be relied upon as determining the heir"). The common-law adoption of this presumption was thus an equitable response to a perceived legal deficiency.

Although most issues of inheritance and property have been obviated by statute; see, e.g. General Statutes § 45a-438 (b) ("for purposes of intestate succession, an individual is the child of his genetic parents, regardless of marital status of such parents"); courts continue to

rely on this presumption in certain instances. See, e.g., Holland v. Holland, supra, 188 Conn. 354; Schaffer v. Schaffer, supra, 187 Conn. 224. In those cases in which courts continue to employ the presumption, it is because those courts have found that the equities or underlying policy issues of the case demand it, and not simply as a procedural survival from an earlier time, lacking in all import and meaning. See, e.g., Ex parte Presse, 554 So.2d 406, 412 (Ala. 1989) (public policy considerations causing husband of child's mother at time of child's birth to be presumed father weightier than considerations supporting claim of biological father who did not acknowledge paternity until years later). Furthermore, in those cases in which the custodial status of a child is in question, the existence of the marriage furnishes this court with a principled basis upon which to rest our oft-expressed policy of supporting the integrity of the family unit and protecting the best interests of the child. See Castagno v. Wholean, 239 Conn. 336, 341-52, 684 A.2d 1181 (1996).

This interest in protecting a child's right to family identification and family integrity is paramount; Moore v. East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L.Ed.2d 531 (1977); and is reflected in the legislative debate over the familial status of a child conceived through artificial insemination. In 1975, the Connecticut General Assembly adopted legislation that declared that "[a]ny child or children born as a result of [artificial insemination with the semen of a donor] shall be deemed to acquire, in all respects, the status of a naturally conceived legitimate child of the husband and wife who consented to and requested the use of [artificial insemination with the semen of a donor]." Public Acts 1975, No. 75-233, § 5, now codified as General Statutes § 45a-774. 49 At the same time, the General Assembly

adopted, as a statement of policy and purpose, legislation declaring that the public policy of Connecticut has been to adhere to the common-law rule that every child born of a married woman in the course of a marriage is a legitimate child of that marriage. Public Acts 1975, No. 75-233, § 1, now codified as General Statutes § 45a-771. A proponent of the legislation explained that its adoption was a matter of "good public policy," and that its purpose was to avoid the problems that had arisen in other jurisdictions where children born through artificial insemination had been deemed not to be issue of the marriage. 50 18 H.R. Proc., Pt. 4, 1975 Sess., pp. 1836-37, remarks of Representative Richard D. Tulisano.

The various revisions of § 46b-56 also reflect the legislature's intent that the concept that the minor child be a "child of the marriage" be given a broader reading than previously afforded by this court. This conclusion is supported by the legislative history, which reveals that the individual legislators were primarily concerned with the possibility that courts would not consider adopted children to be issue of the marriage. See 10 S. Proc., Pt. 6, 1963 Sess., p. 2101, remarks of Senator Paul J. Falsey ("[T]he [statutes] dealing with divorce and the orders that the court may enter . . . regarding support and custody of children [make] references in some instances to children of the marriage, which would seem to eliminate adopted children. This bill would make it clear that the court could make such orders to adopted children as well.").

I agree with the majority that although the statute as revised allows persons other than the parents to contest custody, the fact that such a contest may take place only within the context of an action for an annulment, a dissolution of marriage or a legal separation; General Statutes § 46b-56 (a), incorporating by reference General Statutes § 46b-45; militates against a reading that would totally eliminate the concept of "child of the marriage." Contrary to the majority, however, I am persuaded from the legislative history of the statutes governing custody and related issues that a "child of the marriage" is not always necessarily the biological or adopted offspring of both parents. I read this history as a recognition by the legislature that there are certain factual circumstances under which a child who is the biological or adopted child of only one of the parties

to the marriage is nonetheless considered a "child of the marriage" for the purposes of determining inheritance, support or custody. This concept was created originally as an equitable response to perceived legal deficiencies, and its historical significance obliges the court to expand the term "child of the marriage" beyond the gatekeeping function assigned to it by the majority. Accordingly, I would conclude that § 46b-56 continues to incorporate the concept that the child whose custody is at issue be a child of the marriage that is being dissolved, but that it no longer requires that in every case the child be the biological or the adopted child of both parties to the marriage.

This court previously has considered similar issues and has concluded that the Superior Court lacked jurisdiction to determine the custody of children because they were deemed not to be children of the marriage. See, e.g., Remkiewicz v. Remkiewicz, supra, 180 Conn. 117 (stepfather who did not adopt child born four years prior to marriage could not be required to pay support for child after marriage had ended); Morrow v. Morrow, supra, 165 Conn. 668-69 (court lacked jurisdiction to award custody because child was conceived and born before marriage and, therefore, was not child of marriage); LaBella v. LaBella, supra, 134 Conn. 316 (court lacked jurisdiction to award custody of minor child to wife because child was offspring of husband's adultery and not child of marriage). In all of those cases, however, the birth of the child had no relationship to the act of marriage — in LaBella the child was the product of an extramarital affair, in Morrow and in Remkiewicz the child was born well before the parties were married — and, therefore, the holdings are inapposite to the facts of this case, in which the parties were married to raise this child and both parties acquiesced and participated in planning her conception and birth. Furthermore, these are cases involving limitations on

jurisdiction, which the majority recognizes "have been overtaken by subsequent statutory changes." Remkiewicz v. Remkiewicz, supra, 116; 51 Morrow v. Morrow, supra, 670; LaBella v. LaBella, supra, 316-17. Consequently, because these cases focused on jurisdictional limitations, they are of limited value in defining who is a parent under § 46b-56.

The majority maintains that the statutes governing dissolution control the playing field and relies on our cases to define the contours of the concept of a "child of the marriage." At first glance the analysis appears to apply traditional rules of statutory interpretation. As I have previously noted, the cases upon which the majority relies were decided in the context of jurisdictional limitations that have been overtaken by statutory amendments. Therefore, I suggest that reliance on these cases to interpret the statute in its present form more

accurately reflects the application of the common-law principles embodied in those cases, thereby raising the specter that this case is no longer simply a matter of statutory construction. To the extent that the majority implicitly acknowledges the importance of common-law equitable considerations in deciding who is a parent, I agree that we should not disavow equitable considerations.

Although the method the parties in the present case chose to bring a child into being was unorthodox, the marriage itself and the child's place in that marriage were the very essence of a traditional marriage and family. The child in this case has more in common with a child who is the product of artificial insemination than with the children at issue in LaBella, Morrow or Remkiewicz. See footnote 9 of this opinion and the accompanying text. In the present case, the plaintiff and defendant were married to raise this child. Because the plaintiff was unable to conceive or bear a child herself, she and the defendant participated in a procedure by which a surrogate was inseminated with the defendant's sperm. The plaintiff assisted in the actual insemination of the surrogate, and was present at the conception. Both the plaintiff and the defendant intended from the time the child was conceived that they should be the only mother and father the child ever knew. Although the parties failed to finalize their relationship with the child through the proper probate procedures, it is clear from their actions, including the listing of the plaintiff as the child's mother on the original birth certificate, that they intended that the plaintiff should have all the rights and concomitant responsibilities of a biological and psychological mother. For ten years the plaintiff cared for the child, fulfilling the child's physical, emotional and psychological needs. In light of these facts, and with a renewed understanding of the historical and social underpinnings of the concept

that the child at issue be a "child of the marriage," I would conclude that the child here is a child of the marriage between the plaintiff and the defendant. 52

III

Having concluded that the child was a child of the marriage, I next address the issue of the plaintiff's status in the custody determination. Although it is clear, as the majority holds, that, had the trial court acknowledged the Probate Court judgments, it could have decided the plaintiff's claims regarding child custody, treating the defendant as the child's parent and the plaintiff as a third party nonparent, the plaintiff nevertheless has asked this court to find that the trial court had authority under § 46b-56 to determine the child's best interests as between two parents seeking custody. Allowing the plaintiff to proceed as a parent under § 46b-56, rather than as a nonparent who must overcome the presumption of § 46b-56b, 53 is a crucial distinction because § 46b-56b places a far heavier burden on a nonparent than on a parent. As a parent, the plaintiff would be entitled to have her custody claim given the same level of consideration as the defendant's claim, whereas if she were to proceed as a nonparent there

would be a presumption in favor of the defendant, whose parental status previously has been adjudicated by the Probate Court. "The significance of parental status in custody . . . proceedings is profound. In a custody dispute, parents stand on equal footing with respect to one another, and the court determines custody under a best interests of the child standard. When the dispute is between a parent and a nonparent, not only is the parent usually considered the preferred custodian, but the nonparent may even be found without standing to challenge parental custody." 54 N. Polikoff, "This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families," 78 Geo. L.J. 459, 471-72 (1990); see Garrett's Appeal from Probate, 237 Conn. 233, 236, 676 A.2d 394 (1996); Perez v. Perez, 212 Conn. 63, 77-80, 561 A.2d 907 (1989).

The defendant argues in response that, because the plaintiff has no biological ties to the child and did not adopt her, she would be able to proceed only as a third party. The majority agrees with the defendant that the plaintiff is not his equal. If the plaintiff were not able to prove the facts alleged in her complaint supporting her theory of estoppel, the trial court would typically be bound by the presumption of § 46b-56b. See footnote 7 of this opinion. I disagree with the majority and would conclude that, under the specific factual circumstances of this case, it is appropriate to treat the plaintiff as the child's parent, and not as a third party. See In re Marriage of Allen, 28 Wash. App. 637, 639, 626 P.2d 16

(1981) ("unique circumstances may warrant unique custody decrees").

Not surprisingly, very few courts have been faced with the question before the court in the present case. The issues of parentage and custody usually arise in those dissolution actions in which the mother or putative father of a child avers that the putative father is not the child's biological father; see, e.g., Atkinson v. Atkinson, 160 Mich. App. 601, 606, 408 N.W.2d 516 (1987); or in the aftermath of the dissolution of a nontraditional relationship in which only one party has a biological tie to the child. See, e.g., Alison D. v. Virginia M., 155 App. Div. 2d 11, 552 N.Y.S.2d 321 (1990); see also annot., 84 A.L.R.4th 655 (1991). In the future, however, as the concept of family becomes more fluid and as science continues to expand the frontiers of human reproduction, I am certain that more courts will be faced with fact patterns much like the one we address today. Michaud v. Wawruck, 209 Conn. 407, 415, 551 A.2d 738 (1988). Indeed, as the science of blood and deoxyribonucleic acid (DNA) testing becomes more exact, questions of biological parentage may quickly be answered; see Weidenbacher v. Duclos, 234 Conn. 51, 71, 661 A.2d 988 (1995); Palomba v. Gray, 208 Conn. 21, 36-37, 543 A.2d 1331 (1988) (Shea, J., concurring); leaving only the increasingly difficult questions rooted in social ideals and mores.

Although, traditionally, family law to a great degree has been a creature of statute, family law has also been the responsibility of state courts reacting to fundamental changes in the way that the family has evolved. The traditional American nuclear family of a married couple and their own children has been subsumed by a range of alternatives. 55 See Michaud v. Wawruck, supra, 209 Conn. 415.

As expected, some courts are more amenable to the changes in the definition of family than others. 56 "Across the nation, state courts are reexamining the roles of biological ties and other relationships in the family. Courts consider those relationships against a background of new techniques, medical advances, and evolving life styles." S. Pollack, "The Art of Judging," 71 N.Y.U. L. Rev. 591, 609 (1996); see, e.g., Baehr v. Lewin, 74 Haw. 530, 580, 852 P.2d 44 (1993) (because denial of marriage license to homosexual couple could constitute sex-based discrimination it must be reviewed subject to strict scrutiny under state equal protection clause); Bezio v. Patenaude, 381 Mass. 563, 578, 410 N.E.2d 1207 (1980) (homosexuality does not render mother unfit custodian); In re Baby M., 109 N.J. 396, 429-44, 537 A.2d 1227 (1988) (surrogacy contract rejected as conflicting with existing statutes and public policy of state); In re Jacob, 86 N.Y.2d 651, 656, 660 N.E.2d 397, 636 N.Y.S.2d 716 (1995) (unmarried companion, whether male or female, of child's biological mother can adopt mother's child). "Brush stroke by brush stroke, state courts are painting a new portrait of the American family." S. Pollack, supra, 613.

In recognition of the new portrait of the American family, the plaintiff and the Connecticut Chapter of the American Academy of Matrimonial Lawyers, in its amicus brief, urge this court to adopt the doctrine of the

"equitable parent," as set forth in Atkinson v. Atkinson, supra, 160 Mich. App. 601. 57 The court in Atkinson developed a three part test to determine whether a nonbiological parent should be granted parental status in a custody dispute. Under that test, a nonbiological parent may be on equal footing with a biological parent if "(1) the [person] and the child mutually acknowledge a relationship as [parent] and child, or the [biological parent] of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the [person] desires to have the rights afforded a parent, and (3) the [person] is willing to take on the responsibility of [raising the child]." Id., 608-609. Since the Atkinson decision, other jurisdictions have relied on the doctrine of the equitable parent, or on similar theories, to allow a nonparent to seek custody under the same criteria as would be applied to a biological or adoptive parent. See, e.g., Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982) ("those relationships that affect the child which are based upon psychological rather than biological parentage may be important enough to protect through custody"); In re Marriage of Gallagher, 539 N.W.2d 479, 481-82 (Iowa 1995) (adopting modified Atkinson test); State in Interest of J.W.F., 799 P.2d 710, 715 (Utah 1990) (stepfather has standing to seek custody under best interests standard); In re Marriage of D.L.J. & R.R.J., 162 Wis.2d 420, 426-29, 469 N.W.2d 877 (App. 1991) (applying Atkinson factors, nonbiological father who fulfilled numerous parental duties granted equitable parent status).

Although the equitable parent doctrine has some intrinsic appeal, I am reluctant to adopt such new law

at this time and under these circumstances, particularly when the plaintiff's unusual predicament has been brought about, in part, by the parties' deceptive conduct. 58 My disapproval of their deceptive actions, however, cannot color my interpretation of the law. Rather, it has been my goal to resolve this case in a way that is in keeping with the law, while at the same time recognizing the highly unusual facts of this case. As the amicus Connecticut Chapter of the American Academy of Matrimonial Lawyers concedes, the plaintiff cannot be both a parent and a third party. I would resolve this issue by resort to common sense.

"Common sense . . . is a highly significant guide to statutory interpretation." Trumbull v. State, 206 Conn. 65, 80, 537 A.2d 431 (1988); see Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 741, 687 A.2d 506 (1997) ("`[i]n the interpretation of statutory provisions, the application of common sense to the language is not to be excluded'"). Section 46b-56 provides that, subject to the provisions of General Statutes § 46b-56a, 59 the Superior Court may assign the

custody of a child to both parents jointly, to either parent or to a third party. Section 46b-56 also incorporates, by reference, General Statutes § 46b-45, which deals with annulment, dissolution of marriage and legal separation. A common sense reading of these statutes in their totality leads me to conclude that, for the purposes of § 46b-56, "third party" must be defined as a third party to the marriage that is at issue in the controversy before the court. Accordingly, if a person is a party to the marriage being dissolved, and the child whose custody is at issue is determined to be a child of that marriage, that person is not a third party and should be treated as a "parent."

If, as I have concluded, the child in the present case is the child of the plaintiff's marriage to the defendant, it follows that the plaintiff must be given parental status for the purpose of determining custody. As the attorney general points out in his amicus brief, "[i]t is logical to assume that it is generally in the child's best interest to have more than one parent . . . [and] it is reasonable in the context of this dissolution to construe the term `parent' in . . . § 46b-56 to include the plaintiff. . . ." 60 The issue of parental identity is far more than a mere formality to the child who has her own independent interests in the integrity of the family unit. Weidenbacher v. Duclos, supra, 234 Conn. 74. We presume that

in defining the contours of parentage, the legislature acted in accordance with the underlying purpose of chapter 815j of the General Statutes, which is to protect the best interests of the child. Interpreting § 46b-56 to accommodate the child's definition of what is a parent, and thereby acknowledge the plaintiff as her mother, serves to maintain the continuity and stability of the child's environment consistent with that legislative purpose.

The California Court of Appeal, recognizing the traditional role of the common law in applying old legal principles to new technology, applied many of the same considerations in deciding a recent case involving Luanne and John Buzzanca, who had agreed to have an embryo genetically unrelated to either of them implanted in a woman, a surrogate, who would carry and give birth to the child for them. Buzzanca v. Buzzanca, California Court of Appeal, Docket No. GO22147 (4th D. March 10, 1998). After fertilization, implantation and pregnancy, the Buzzancas separated, and the question of who the child's lawful parents were came before the trial court as part of the dissolution action. Luanne claimed that she and John were the child's lawful parents, John disclaimed any responsibility, and the surrogate stated that she made no claim to the child. The trial court concluded that the child had no lawful parents. Id., 2. First, the trial court accepted a stipulation that the surrogate and her husband were not the "biological" parents. The trial court then concluded that Luanne was not the mother because she had neither contributed the egg nor given birth, and that John was not the father because he had not contributed the sperm and therefore had no biological relationship with the child. 61 Id.

On appeal, John Buzzanca argued that because under California's Uniform Parentage Act; Cal. Fam. Code § 7600 et seq. (Deering 1996); and particularly as set forth in § 7610 of California's Family Code, there are only two ways a woman can establish motherhood, i.e., by giving birth or by contributing genetically, Luanne Buzzanca could not be the child's mother. 62 He further argued that, because the identities of the genetic contributors were not known to the court, the surrogate and her husband had to be the legal parents. Buzzanca v. Buzzanca, supra, California Court of Appeal, Docket No. GO22147, 6-7. Conversely, Luanne continued to argue that she and John were the legal parents. The Court of Appeal held that both Luanne and John were the parents, concluding that "[j]ust as a husband is deemed to be the lawful father of a child unrelated to him when his wife gives birth after artificial insemination, so should a husband and wife be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. In each instance, a child is procreated because a medical procedure was initiated and consented to by intended parents." Id., 3.

First, the court cited at length to an earlier case involving surrogacy in which it had held that although § 7610 contains no direct reference to genetics, genetics is subsumed in the words under this part, and "that genetic consanguinity was equally `acceptable' as `proof of maternity' as evidence of giving birth." Id., 8; see Johnson v. Calvert, 5 Cal.4th 84, 93, 851 P.2d 776, 19 Cal. Reptr. 2d 494 (1993). In reaching that decision by

a "parity of reasoning"; Johnson v. Calvert, supra, 92; the court in Johnson had looked to a variety of statutes, all of which by their terms applied only to paternity. Id., 90-92. Indeed, in Buzzanca, the court stated that "[i]t was only by a parity of reasoning from statutes which, on their face, referred only to paternity that the court in [Johnson] reached the result it did on the question of maternity." (Emphasis in original.) Buzzanca v. Buzzanca, supra, California Court of Appeal, Docket No. GO22147, 8. In the same vein, recognizing that the legislature may not have contemplated the application of the artificial insemination statute to a gestational surrogacy case in which the genetic donors are unknown to the court, the Buzzanca court then turned to California's artificial insemination statute; Cal. Fam. Code § 7613 (Deering 1996); as "the clearest expression of past legislative intent when the legislature did contemplate a situation where a person who caused a child to come into being had no biological relationship to the child." Buzzanca v. Buzzanca, supra, 10. The court concluded that there was no reason to distinguish between husbands and wives because they are equally situated from the point of view of consenting to an act that brought the child into being. Id., 20-21.

Given their roles as the intended parents in the conception and birth of the child, and recognizing further that public policy favors, whenever possible, the establishment of legal parenthood with the concomitant responsibility, the court concluded that Luanne and John Buzzanca were the legal parents of the child. Id., 24. Although the court called upon the legislature to sort out parental rights and responsibilities of those involved in artificial reproduction, and indeed, appreciating that the legislature is the preferred forum for lawmaking, the court recognized its ability to make decisions on an ad hoc basis without necessarily imposing some grand scheme, looking to the imperfectly

designed body of statutes and a growing body of case law for guidance in light of the applicable family law principles. Id., 24-25.

In the present case, the facts are more compelling because they go well beyond an agreement that set in motion a medical procedure that resulted in the birth of a child. The parties in this case performed as parents pursuant to that agreement for more than ten years. If intent of the parties were the ultimate basis of a decision of lawful parentage, this case presents the best example of the need of the court to be able to establish motherhood by conduct apart from giving birth or being genetically related to a child.

I acknowledge that to extend parental rights to an adult who has no biological ties to a child could be seen as opening the door to an onslaught of litigants seeking to have a variety of family relationships validated for the purpose of determining custody. I also acknowledge the possibility that certain unscrupulous parties could use such a decision as a new tool for leverage in an inimical divorce action. It is not my intent to open the door to all unrelated third parties who happen to feel a bond of affection with a child. Indeed, the factual context of this case, limited as it is to dissolution, separation and annulment proceedings pursuant to § 46b-56, substantially lessens this risk. Nor do I intend to invade or diminish the rights of the biological parent. Biology, however, is not always dispositive when we are making decisions regarding the care and welfare of children. See Weidenbacher v. Duclos, supra, 234 Conn. 76. My decision is limited to this extreme case, in which the marriage was entered into to raise this child and the plaintiff, who seeks custody, has acted as the child's parent from birth and no other party has acted in the same parental role, such that to deprive

the child of the care and affection of the plaintiff would be to deprive that child of a parent. 63

In addition, I note that by deeming the minor child a "child of the marriage" and by concluding that, as a party to that marriage, the plaintiff, as a nonbiological parent, must have equal footing with the defendant in the custody determination, I recognize not only the plaintiff's right to seek custody, but also her ongoing responsibility to provide care and support for the child, apart from any custody determination. She may not assume or shed her parental role at will. Finally, I caution that my conclusion would not automatically entitle a nonbiological parent to custody. The determination of custody should focus less on the legal relationship between the parties than on the best interests of the child.

I would reverse the judgment of the trial court regarding its lack of jurisdiction to determine custody of the minor child and remand the case to that court for determination of custody and support pursuant to § 46b-56, treating both the defendant and the plaintiff as parents, and applying the ultimate standard — the best interests of the child.

Accordingly, I respectfully dissent from part III of the majority opinion.

KATZ, J., concurring in part and dissenting in part.