Priest Loses Custody Dispute to Woman Who Bore Triplets with Donor Eggs

By Caryn Tamber
Daily Record
October 27, 2008

The state's second-highest court has upheld a judge's decision to give custody of 6-year-old triplets to the woman who gave birth to them using another woman's eggs and the sperm of a Catholic priest.

Dalia Fernandez deserves custody because the priest, Fernando Cristancho, was found to have sexually abused two of the triplets, the Court of Special Appeals held.

Margaret Attanasio, the Harford County lawyer who argued the case for Fernandez on appeal, said she expected the court to decide the case in favor of her client.

"It's not a surprise," she said. "They had to affirm it."

The county trial judge had found that Fernandez, a platonic friend of the priest who had lived with his mother, was the triplets' de facto parent — that is, a non-parent who acts in a parental role.

However, while Cristancho's appeal was pending, the state's highest court struck down the de facto parent doctrine in another case. It held that third parties must show exceptional circumstances to overcome a parent's right to determine custody or visitation.

But that did not mean the decision should be reversed, the intermediate appellate court said.

"[E]ven though it relied upon a subsequently overruled case, the trial court applied the correct test in making its decision," Judge Deborah S. Eyler wrote for the three-judge panel. "Therefore, any error in finding that Dalia was a de facto parent of the triplets was harmless, as Fernando [Cristancho] himself concedes in his brief."

Cristancho's lawyer, Laura Bearsch, did not immediately return a call for comment Monday afternoon.

Two boys and a girl

According to Monday's unreported opinion, Cristancho and Fernandez met through Cristancho's sister, who worked with Fernandez.

Cristancho, as a priest, had taken a vow of celibacy, but he wanted children. He convinced Fernandez to bear his children, who would be conceived through in vitro fertilization of an anonymous donor's eggs with Cristancho's sperm.

Fernandez was 50 years old at the time; Cristancho was in his 40s. They were close friends but did not have a romantic or sexual relationship, according to the opinion.

They traveled to Colombia, Cristancho's native country, in 2001 to undergo the in vitro process. Afterward, Fernandez moved in with Cristancho's mother and, when he was not staying at the church, Cristancho himself. Various other relatives of Cristancho and Fernandez lived there too, at times.

Fernandez gave birth to the triplets, two boys and a girl, that November. Cristancho, at the time an assistant priest at St. Ignatius Church in Forest Hill, did not tell anyone at his church about the children. When church officials found out, they fired him, according to the appellate opinion.

Fernandez and Cristancho's relationship started to deteriorate, with allegations of domestic violence and a fight over custody. In 2005, Fernandez found out from one of the boys that Cristancho was sexually abusing him, the opinion says.

She testified that she contacted the children's doctor to find out what to do, but he told her "nothing could be done until the children were six years old," according to the opinion.

In 2006, a friend of Fernandez who was babysitting the children

heard a similar story from the boy. The friend told her pastor, who contacted the police and notified an official with the Archdiocese of Baltimore.

The Department of Social Services was notified and investigated. The agency determined that child sexual abuse of the two boys was "indicated," its highest-level finding, but ruled out abuse of their sister.

In 2007, after a custody trial, Harford County Circuit Judge Emory A. Plitt Jr. found that Cristancho had abused the boys, and did not find that Cristancho was unlikely to abuse them again. In addition to finding that Fernandez was a de facto parent, he found that she had proven Cristancho unfit and, therefore, that she only had to show that giving her custody would be in the children's best interest.

On appeal, Cristancho argued that Plitt had erred in finding that he had abused the boys, but the Court of Special Appeals rejected his argument as "an attempt to reargue the facts of the case."

J. Richard Moore III, who is now a domestic master in Harford County but represented Fernandez at trial, said he was not concerned about the fate of the case when he heard the Court of Appeals struck down de facto parenthood.

"I wasn't, only because of the way that Judge Plitt fashioned his decision," Moore said. "It hedges against that whole issue, the de facto parent."

The unreported opinion is available as RecordFax 8-1027-06 (18 pages).


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