A couple won temporary custody Friday of a test-tube baby after a surrogate mother who wants to keep the newborn said she didn't want the child sent to a foster home.

The surrogate mother, Anna Johnson, agreed to the temporary agreement after a judge threatened to send the boy to a foster home if the trio could not agree on interim custody."She couldn't handle it," said Johnson's attorney, Richard Gilbert.

He said the ruling by Superior Court Judge Richard Parslow Jr. would be appealed.

Mark and Crispina Calvert hired Johnson for $10,000 to carry an embryo created from their egg and sperm. Crispina Calvert could not bear the child because she has had a hysterectomy.

The Calverts hugged in court after the ruling.

"Under the circumstances we feel it's a fair option," Calvert said when asked if he was grateful to Johnson.

Crispina Calvert said she is going to take maternity leave and was preparing the baby's nursery. "It's all worth it," she said.

Johnson will be allowed a three-hour visit each day with the child, supervised by court-appointed guardian William Steiner.

Another hearing is scheduled Thursday to decide long-term interim custody.

That decision was supposed to be made Friday but the parties remained at an impasse after hours of talks in the judge's chambers.

The baby, born Wednesday, and Johnson, 29, remained at St. Joseph Hospital in Orange on Friday. Both were reported in good condition. The baby, who has not been named, was born about two weeks early and was treated for breathing problems.

Gilbert said Johnson cried about the decision but believed it was best for the child.

"Anna has sought some shared parenting arrangement - so let it begin today," Gilbert said.

Earlier, the baby's court-appointed attorney said there was no progress in general talks on permanent custody.

Harold LaFlamme said they were "not one inch" closer to a decision.

Johnson, who worked with Crispina Calvert, 36, at a Santa Ana hospital, sued for custody, child support and damages Aug. 13, alleging the couple failed to provide financial and emotional support as promised.

Attorneys call the case unprecedented because Johnson seeks custody of a child to whom she has no genetic link.