Lesbian Mom's Battle For Dead Partner's
Child Goes To West Virginia Supreme Court
by 365Gay.com from the Web, March 9, 2005
Charleston, WV -- A woman seeking custody of her dead partner's 5-year-old son cannot be recognized as a psychological parent, the West Virginia Supreme Court was told on Tuesday.
After falling in love and committing to each other, Tina Burch and Christina Smarr decided to have a child together.
The couple agreed that Smarr would carry their child. On December 25, 1999, Smarr gave birth to Zachary.
The couple raised Zachary together as a family until Smarr was tragically killed in an automobile accident on June 1, 2002.
Following Smarr’s death, her parents, Paul and Janet Smarr, sought to take custody of Zachary.
The trial court sided with Burch and awarded her primary custody, with visitation rights to the grandparents.
The court found Burch to be Zachary’s “psychological parent” –- one who, while not related to a child biologically or through adoption, has functioned as a parent in every way.
West Virginia appeals courts have recognized psychological parents in the past, but never involving gay couples.
The grandparents appealed and the Circuit Court reversed the trial judge’s ruling, deciding to remove Zachary from a parent he has lived with since birth and give custody instead to the grandparents.
The Circuit Court refused to apply the psychological parenthood doctrine in the context of a gay couple.
Burch then appealed to the state Supreme Court.
Attorney Donald Bischoff who represents the maternal grandparents told the justices Tuesday that even though Smarr and Burch planned the pregnancy and lived as a family for years, Burch has no status in the custody fight.
Bischoff argued that as long as the boy's biological father is alive Burch has no standing in the case.
The father has no involvement in the boy's life and supports Burch having custody.
The court did not indicate when it will rule.
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