ACLU Urges West Virginia High Court Not to Take Four-Year-Old From His Surviving Lesbian Mom

December 6, 2004 12:00 am

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CHARLESTON, WV - In a friend-of-the-court brief filed today, the American Civil Liberties Union urged the West Virginia Supreme Court not to separate a four-year-old boy from his surviving mother following the unexpected death of his biological mother.

"This is a heartbreaking example of what can happen when lesbian and gay families are not respected," said Andrew Schneider, Executive Director of the ACLU of West Virginia. "This child has already lost one of his mothers. It would be tragic if our courts broke up his family and took him from his only surviving parent."

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 a son. The couple raised him 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 the child. The trial court sided with Burch and awarded her primary custody, with visitation rights to the grandparents. The court found Burch to be the child'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 Circuit Court reversed the trial judge's ruling, deciding to remove the child from a parent he has lived with since birth and give custody instead to his grandparents. The Circuit Court refused to apply the psychological parenthood doctrine in the context of a gay couple. The case is now before the West Virginia Supreme Court on appeal. Burch has been allowed to maintain custody of her son pending a decision by the high court.

"The Circuit Court ignored one of the most basic tenets of family law - safeguarding children's relationships with their parents," said Leslie Cooper, a staff attorney for the ACLU's Lesbian and Gay Rights Project. "This little boy has already lost one parent. There is no reason a court should subject him to another grievous loss simply because of the sexual orientation of his parents."

The brief filed by the ACLU argues that the relationship that Burch formed with her son is constitutionally protected and that the Circuit Court violated Burch and child's constitutional rights by denying her custody of her son.

Oral arguments before the West Virginia Supreme Court are expected to take place in early spring.

A copy of the ACLU's brief is available at /Files/OpenFile.cfm?id=17151.

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