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Almost Heaven

West Virginia  Supreme Court awards child to dead mother's lesbian partner

Dateline: June 17, 2005

It's not the first ruling of its kind, nor will it be the last.   Yet, what is significant here is that this decision did not come out of one of those locations where people smile and say, "Yes, but that's California," or, "What can you expect from New York?" or, "Those people in Massachusetts have always been a little off,"  or even, "Vermont, it's so small, who cares?"

No, this decision happened in West Virginia.  

Not quite mid-west, nor southern, clearly not northern, and very firmly smack in the middle of what is called "The Bible Belt."

Some of my friends have suggested the transformation is due to my recent residence in the state, while others have suggested that I wander the country, sort of a lesbian version of Johnny Appleseed, spreading the seeds of equality under the law wherever I go.

Regardless of the reason, there is cause to rejoice, the West Virginia Supreme Court awarded custody of a 5 year old boy to his biological mother's surviving "partner."

The Court, in a divided ruling, held that a "psychological parent" can intervene in custody cases noting that a psychological parent is one who fulfills a child's psychological and physical needs while providing emotional and financial support.

A lower court had awarded custody to the boy's maternal grandparents.

Tina Burch and Christina Smarr had lived together since 1998.   Their son was born more than a year into their relationship.   In 2002 Smarr died in a car accident and relatives almost immediately took the boy from Burch and handed him over to Smarr's parents, Paul and Janet Smarr.

A Family Court judge, relying on "the best interests of the child" originally awarded custody to his co-parent Burch, but that ruling was reversed by a Clay County circuit judge who ruled that state law had no provision to allow the awarding of custody to the surviving partner.

The Supreme Court disagreed in its ruling, creating the status, and therefore standing, of "psychological parent."   One judge dissented, and another concurred in part and dissented in part, but have not yet published their rulings so their positions and reasoning are as yet unknown.

So, it's good news out of West Virginia.

Yet, as another of my friends, a woman named Laura,  noted, "It is utterly ridiculous that it took the supreme court of a state to determine that a child's real parent could keep him."

She is right, of course, and she concludes with, "It is time for our laws to make it easy for same-sex parents to adopt the biological children of their partners.  It's time for (at a minimum) the establishment of civil unions in all 50 states that are the legal equivalent of civil marriage. "

I can't say it any better myself.

In pride,








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