Court Case to Keep an Eye On (GALE Related)

[LadyTevar]

This could have reprecussions across the US, depending on how the courts decide.

Courts to decide parental rights
Lesbian partner of deceased woman fights for custody of 4-year-old

Toby Coleman
Daily Mail staff

Friday September 03, 2004

The state Supreme Court has agreed to decide whether state law will recognize the parental rights of two mothers when a child is raised by lesbians.

The first-of-its-kind case, accepted for argument Thursday in a 3-2 vote, is expected to garner national attention.

It centers on the fate of a 4-year-old Clay County boy conceived via artificial insemination and born to a lesbian couple. When his biological mother, Christina D. Smarr, died in a 2002 car accident, he became the focus of a pitched custody battle between Smarr's parents and Smarr's lesbian partner, Tina Burch.

At issue: whether Burch's sexuality makes her ineligible to take custody of the boy who she has helped raise since conception.

Burch lost custody of the boy in December after Clay Circuit Judge Jack Alsop ruled that state law doesn't give a homosexual the right to win legal guardianship of a former partner's child.

Her lawyer, James Wilson Douglas of Sutton, responded by asking the Supreme Court to overturn Alsop's decision. He is trying to use a 14-year-old high court ruling granting custody rights to so-called "psychological parents" to put the boy back under Burch's roof.

On Thursday, he won a small victory. In addition to agreeing to hear the case, Justices Joe Albright, Robin Davis and Larry Starcher voted to give the boy back to Burch for the time being.

Chief Justice Spike Maynard and Justice Warren McGraw voted to leave the boy with his grandparents, Janet and Paul Smarr.

Janet Smarr said today that she was disappointed with the high court's decision. "Well forever more," she said. "(Burch) is nothing but a low-down and I'm not going to say the word."

Smarr said she and her husband have fought for their grandson "tooth and nail" because they do not believe that Burch was their daughter's lesbian lover. It is not a view that the courts have shared - even Judge Alsop acknowledged in a December order that Burch and Christina Smarr "lived together in a same-sex relationship."

Burch's case comes to the high court as more homosexual couples are finding ways to conceive and raise children. According to the gay and lesbian group LAMBDA, millions of children now have lesbian parents.

These developments are forcing courts across the country to grapple with new sorts of custody battles. For instance, there are a series of cases from courts across the country finding that when a lesbian couple breaks up "psychological parents" like Burch can't win custody from the biological mother.

But few, if any, courts have wrestled with what to do with a child of a lesbian couple when his biological mother dies.

Burch's case "could put West Virginia in the spotlight," Douglas said.

The case began in 1999, when Burch, the owner of a commercial cleaning service, and Smarr decided to have a child of their own. So Smarr got pregnant using sperm donated by a friend of Burch's sister.

From the start, the two women raised the child together. They kept pregnancy calendars, shopped for baby clothes and visited the doctor side by side.
After the boy was born on Christmas Day 1999, they shared the parental duties.

"They just had a nice, quiet existence," Douglas said. "It was a classic love story."

It all changed on June 1, 2002. As the women made their way home that day, Burch fell asleep at the wheel and crashed less than a mile from their driveway. Burch made it out with minor injuries, but Smarr died.

The custody fight for the little boy began within hours of Smarr's death when Smarr's brothers-in-law took the boy from Burch and handed him over to his grandparents, Paul and Janet Smarr.

Burch fought the Smarrs' guardianship claims using a state law that allows the courts to give custody to a child's "psychological parent." She argued that the child was as much her son as it was Christina Smarr's.

Although Burch isn't related to the boy by blood, "she very seldom uses his Christian name," Douglas said. "She always refers to him as ‘my son.' "

Burch's argument worked in Clay County Family Court. Since "it was not planned that the Smarrs serve as primary custodians prior to the death of their daughter," Judge Timothy Ruckman wrote in a July 2003 order that "the stability of the child and the continuity of existing parent-child relationships are best promoted by designating Tina Burch as primary custodian."

She now hopes she can convince the Supreme Court to take the same approach. If not, her homosexuality could keep her from ever winning custody of the boy.

[Glocksman]

However this is decided, I hope the sole criterion is what is in the best interest of the child, and not to make a political statement either way.

[Alex Moon]

However this is decided, I hope the sole criterion is what is in the best interest of the child, and not to make a political statement either way.

Agreed. And the grandparents are sick fucks for doing this.

[SirNitram]

As much as I love my adopted home, this isn't gonna be pretty. West Virginia isn't the deep, deep south, but our fundies are loud and retarded.

[Frank Hipper]

As much as I love my adopted home, this isn't gonna be pretty. West Virginia isn't the deep, deep south, but our fundies are loud and retarded.

Some of the "deep, deep" south doesn't compare to West Virginia for it's outlook.