Others Get Into the Act in Some Custody Battles : Trends: Disputes can now involve grandparents, surrogate parents, unmarried couples, gays and even embryos.

Custody is often the most emotional issue in divorce cases involving children. There are, however, other issues related to child custody that only five years ago were unheard-of in court proceedings.

These are the emerging trends that promise to test the Best Interests Standard, the judicial guide by which all custody cases are determined, and perhaps set new standards in the increasingly complicated aspects of child custody.

Some of the new custody issues, according to Judge Stanley Novack, who hears custody cases at Superior Court in Stamford, Conn., include grandparents’ rights, surrogate parents, unmarried parents, homosexual parents and frozen embryos.

“This is a whole brand new field in this branch of law,” Novack said. “And it raises all kinds of philosophical questions. For example, can a prostitute be a good mother? The answer could be yes, depending on her relationship with her child.”

In determining the answer, said Novack, a judge must “reach back into the same old law” and go by the Best Interests Standard.

“You have to consider the impact on a child,” he said. “That’s the $64 question. It doesn’t automatically rule out a parent who has, say, a homosexual relationship with another person, or who is living with a member of the opposite sex who isn’t the other parent, but these kinds of things are certainly factors to be considered.”

There are, however, very few precedents for certain cases. One is the so-called “Baby M Case,” in which a surrogate mother decided she wanted to keep the child she had contracted to bear for a young professional couple that could not have children of their own.

The case drew national attention and ended when a judge ruled in 1988 that the adoptive parents should have custody and the surrogate mother should have only visitation rights.

“That case was new,” Novack said. “Cases involving sperm donors are new. There are now cases involving arrangements made between unmarried couples who have children. And, of course, the whole issue of parental rights in frozen-embryo cases is new,” he added, referring to the case in Tennessee last year in which a judge in a divorce case gave custody of seven frozen embryos to the woman whose husband had fertilized them.