The American Civil Liberties Union on Monday filed a friend-of-the-court brief urging the West Virginia supreme court not to separate a 4-year-old boy from his surviving lesbian parent 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 Zachary. The couple raised Zachary together until Smarr was 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 while giving 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 in a case involving a gay couple.
Refusing to apply the psychological parenthood doctrine in the context of a gay couple, the circuit court reversed the trial judge's ruling, giving custody instead to the grandparents. The case is now before the West Virginia supreme court on appeal. Burch has been allowed to maintain custody of Zachary 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. "Zachary 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 Zachary is constitutionally protected and that the circuit court violated Burch and Zachary's constitutional rights by denying her custody of him. Oral arguments before the West Virginia supreme court are expected to take place in early spring.