ACLU Applauds Child Custody Award For Surviving Lesbian Mom in West Virginia

June 17, 2005 12:00 am

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CHARLESTON, WV — The American Civil Liberties Union today applauded the decision of the West Virginia Supreme Court of Appeals not to separate a five-year-old boy from his lesbian mother following the tragic death of her partner, the child’s biological mother.

The ACLU of West Virginia and the ACLU’s national Lesbian and Gay Rights Project filed a friend-of-the-court brief on behalf of Tina Burch after a lower court denied her custody of the boy she considers her son. Now, for the first time, a West Virginia Supreme Court of Appeals has recognized the standing of a gay or lesbian parent to seek recognition as a psychological parent.

“The Court, in its wisdom and compassion, has recognized Tina Burch for what she is: the surviving parent of a little boy who has already lost one of his mothers,” said Andrew Schneider, Executive Director of the ACLU of West Virginia. “She and her lawyer, James Douglas, have won an important victory for children and families.”

After entering into a committed relationship, Burch and her partner, Christina Smarr, decided to have a child together. The couple agreed that Smarr would carry the child and on December 25, 1999, Smarr gave birth to their son. The couple raised the child and Burch’s biological daughter together as a family until Smarr was tragically killed in an automobile accident on June 1, 2002.

Following Smarr’s death, her parents sought to take custody of the little boy. The family court found Burch to be the child’s “psychological parent” — one who, while not related biologically or through adoption, has lived with the child and functioned as a parent — and awarded custody to Burch with visitation rights for the grandparents. The Circuit Court, the state’s intermediate appeals court, reversed the trial judge’s ruling, removing the child from a parent he had lived with since birth and giving custody instead to his grandparents.

The Circuit Court refused to apply the psychological parent doctrine in the context of a lesbian couple. Today’s decision overturned that ruling. “Simply stated,” the court said, “the child’s best interests would best be served by awarding permanent custody of [the child] to Tina B[urch].”

“Today, West Virginia’s Supreme Court of Appeals has recognized the most basic tenets of family law — serving the best interests of the child and preserving family stability and unity,” said Terri Baur, staff attorney for the ACLU of West Virginia Foundation.

Today’s decision as well as the ACLU’s friend-of-the-court brief can be found online at: /caseprofiles.

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