West Virginia supreme court to decide gay parenting case

A woman seeking custody of her dead girlfriend's son cannot be recognized as a "psychological parent," even though the two women planned the pregnancy, shopped together for the baby, and lived as a family for more than two years, a lawyer told the West Virginia supreme court on Tuesday. Attorney Donald Bischoff, representing the maternal grandparents who also want custody, said psychological parenting status can be granted in a custody fight only when no biological parents exist. In the case involving the son of the late Christina Smarr, the biological father is still alive, so Smarr's partner has no rights. Bischoff said his argument has nothing to do with the women's lesbian relationship; he contends the same principle would apply to a stepparent who has helped raise a spouse's child. Smarr died in June 2002 in a car accident that also hospitalized her partner, Tina Burch. The women had lived together since 1998, more than a year before the birth of the boy on Christmas Day 1999. But within hours of Smarr's death, relatives seized the boy, identified in court documents as Z.B.S., and handed him over to grandparents Paul and Janet Smarr. A family court judge granted custody to Burch, but Clay County circuit judge Jack Alsop ruled that state law doesn't give a gay person the right to win legal guardianship of a former partner's child. The state supreme court then stepped in, giving Burch custody of the child while it considers the case. "This is not a gay rights case; this is a civil rights case," said Burch's attorney, James W. Douglas, who contends Alsop revoked Burch's custody because of her sexual orientation. The biological father, characterized as a sperm donor with no involvement in the boy's life, supports Burch having custody, Douglas said. Jeffrey Hall, the child's court-appointed guardian, agreed and said he had observed "a significant bond" between Burch and the boy. "I didn't think this was a difficult case," he told the justices. "I looked at this from the standpoint of the child." The justices tried repeatedly to strip sexual orientation from the debate, with three of the five saying it was irrelevant to the definition of psychological parenthood. What matters, they said, is what's in the child's best interest. Justice Elliott "Spike" Maynard questioned whether a ruling in Burch's favor could undercut the rights of a biological parent, theorizing that a boyfriend could win custody of a child from its mother just by being present in the home. "Take homosexuality out of it for a moment because if we make law here, it will apply to heterosexuals as well as homosexuals.... Would you make the same argument with a heterosexual couple?" he asked Douglas. Douglas answered yes, saying the law defines a psychological parent as a person who contributes daily to the child's life and helps fulfill its psychological and physical needs. Bischoff, however, argued that because Smarr was always present in her son's life, Burch cannot be considered a psychological parent. "The natural parent has to be found to not be doing the job," he argued. "Christina Smarr was taking care of the child." Justice Robin Davis then interjected, "What was Miss Burch, just a picture on the wall?" Chief Justice Joseph Albright then asked Bischoff whether a stepparent who has spent years helping to raise a child would have psychological parent status if the biological parent died. Bischoff said no. Burch's attorney disputed that, arguing that "the existence of a biological parent does not preclude a psychological bond." The court, which held Tuesday's session in Morgantown, did not indicate when it might rule. Attorneys with the American Civil Liberties Union weighed in on the case as well, filing friend-of-the-court briefs on behalf of Burch. Treating Burch and the child "as legal strangers" despite their more than two-year relationship before Smarr's death deprives them of their constitutionally protected, psychological parent-child relationship, the ACLU wrote. The existence of a biological father is irrelevant to that relationship. "State law recognizes Tina to be the parent that she is," the ACLU said, "but even if it did not, the constitution would prohibit the government from interfering with this family without a compelling reason for doing so." (AP)