An Erie judge yesterday granted primary physical custody of triplets to their surrogate mother, a decision that defies the overwhelming judicial trend denying rights to surrogate mothers.

In a 50-page decision, Common Pleas Judge Shad Connelly said he based the ruling on the best interests of the children, which is the bottom line in any custody case.

Connelly praised the surrogate mother, who took the children home from the hospital after the contracting father neglected to visit them for six days after their birth. In contrast, the judge sharply criticized the care-taking abilities of the 63-year-old suburban Cleveland man who provided the sperm and entered into the surrogacy contract hoping to obtain a child for himself and his 60-year-old fiancee.

In addition to granting custody to Danielle Bimber, the surrogate mother, the judge decided that the biological father, James O. Flynn, will continue to have visitation but decreased it by about four days a month.

And the judge ordered that Flynn and his fiancee call the children by the legal names Bimber gave them on their birth certificates, Matthew, Mark and Micah, not Easton, Lance and Shane, as Flynn had been referring to them. Their last name will be Flynn, but Bimber said yesterday she'd agreed to that months ago.

Bimber said she was happy and relieved, "I just kept saying, 'Thank God.' This is just so good."

Her attorney, Joe Martone of Erie, said, "We think the judge's opinion provides a very fair solution for a very difficult case."

Flynn, who wanted sole custody of the triplets, could not be reached for comment. His attorney, Melissa Shirey of Erie, said Flynn is considering his options.

Despite the opinion, Bimber's custody of the boys, who are now 1-year-old, is not secure. Flynn has made it clear he's likely to appeal any decision giving her primary rights. And the Texas college student who donated the eggs to create the babies has announced her intention to seek custody.

Steve Litz, a surrogacy expert, said yesterday he knew of only one other case in which a surrogate mother was granted custody -- and unlike Bimber, that Michigan woman had been the egg donor.

Litz, a lawyer and director of Surrogate Mothers Inc., the Indiana agency that arranged for Flynn's contract, said in the Michigan case, which occurred about a decade ago, the contracting father of twins announced that he wanted only one, the girl. The surrogate mother, who refused to split up the twins to accommodate that, got primary custody.

In his court ruling, however, Connelly mentions another case, more recently, in Tennessee. Like Bimber, a woman was implanted with donated eggs. The sperm came from a man who claimed to be her husband but had not married her. After the children were born and he broke off his relationship with the woman, he tried to argue that the triplets had no mother because the egg donor had given up her rights and the woman who bore the children had no genetic tie to them. But a Tennessee court awarded primary custody to the surrogate mother.

Still, over the past two decades, the vast majority of cases have gone against the surrogate mother, the way the first infamous one did. That was the Baby M case. Surrogate mother Mary Beth Whitehead changed her mind and wanted to keep the child after birth. But the court decisions went against her.

Litz, who has closely followed such cases for 20 years, says the Bimber situation is an anomaly, and, as a result, should not be considered part of a trend. "This is the only case of its kind," he said.

It's bizarre, Litz said, because it appeared to be a case of abandonment by a father who had paid a lot of money to get the children.

Flynn, and his fiancee, Eileen Donich, a retired dentist, visited the boys at the hospital the day they were born, Nov. 19, 2003, but then did not return for the following six days. The hospital called child welfare officials to have the boys placed in foster care. Rather than see that happen, Bimber, who had been discharged, returned to the hospital and took them home.

Nearly a month later, Flynn filed for custody.

In an interim decision in April, Connelly declared Bimber to be the boys' mother by virtue of giving them birth. He gave her temporary primary physical custody and awarded Flynn visitation rights. And he declared the contract they'd signed to be invalid because it denied the boys a mother. Connelly said the egg donor hadn't come forward to assert any parental rights and Flynn's fiancee had none because she wasn't married to him or a party to the contract.

Shortly after that, the egg donor, Jennifer Michelle Rice, asked an Ohio court to declare her the mother. That judge determined she had a parent-child relationship with the boys but left the custody question up to Connelly.

Bimber has asked Connelly to terminate any parental rights Rice may have, but an attorney for Rice, John Evanoff, of Erie, has said Rice will fight the termination and wants some sort of custodial rights.

"She wants to see the best interests of the children served," he said.

Connelly said in his opinion that it's not clear how the children's best interests would be served by granting rights to Rice, who made no efforts to get custody for at least five months after they were born and who may never have laid eyes on the boys.

Litz said it's rare for an egg donor to re-emerge after receiving her payment and for the contracting parents to behave as Flynn did. "This is not a case about surrogacy," he said, "It is a case about bad parenting."

Though he is in the business of arranging surrogacy contracts, Litz said Connelly's decision was correct.

"My concern has always been what is best for the children. I firmly believe what the judge has decided is best." That, he said, is because Bimber "has always been the one who has demonstrated concern for the children."

Connelly clearly agreed, saying, "Based on all of the testimony presented, [Bimber] is the better caretaker by far, and primary custody should remain with her."

In testimony, Bimber, who is married and has three other children, described the triplet's daily routines, individual personalities and medical care. The judge noted, "Unlike [Flynn], she used actual names and terms of affection for each child."

Flynn, by contrast referred to them as "one of them" and "the biggest one."

Though Flynn and Donich repeatedly emphasized their "higher income, larger house and better-rated schools ... a court is not obligated to award custody of a child to one party over another based solely on a bigger house or a better standard of living, either," the judge wrote.

The judge also expressed concern about the way Flynn and Donich treated the children, "It is also very apparent from their testimony that [Flynn], and Dr. Donich especially, like showing off the children, almost as if they were objects. The court cannot emphasize enough that this is not in the children's best interests. They are human beings to be cared for, not shown off like shiny new toys."