Mother's same-sex partner deemed child's 'psychological parent'.

A woman whose same-sex partner died in a car accident has standing to sue for custody of their child, the West Virginia Supreme Court has ruled, because she is a "psychological parent" to the boy. The decision is the first in the state allowing a gay or lesbian parent to seek standing on those grounds. (In re Clifford K., No. 31855, 2005 WL 1431514 (W. Va. June 17, 2005).)

The state's highest court noted that "although we previously have recognized the concept of a psychological parent in our jurisprudence, we have never formally defined it."

In this case, the court gave the term a clear definition, describing a "psychological parent" as someone who, "through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support." It concluded that the plaintiff met that description. The court also noted that West Virginia law allows a "psychological parent" to sue for custody in "exceptional circumstances," and that the facts of this case met that standard.

The partners, Tina Burch and Christina Smarr, began living together in 1998. They decided to have a child together and enlisted the help of a friend, identified as Clifford K. in court papers. Clifford and Christina were the biological parents of the child, known as Z.B.S., a boy who was born in 1999.

In 2002, Christina died in a car accident. Her parents, Paul and Janet Smarr, assumed custody of Z.B.S. and were appointed his guardian by the Clay County Commission. Clifford and Tina filed a petition for custody, although Clifford told the court he did so only on Tina's behalf and did not want custody himself. The county family court awarded custody to Tina, calling her the child's "second mother, by design and in actuality."

The Smarrs then filed an appeal, arguing that Tina did not have legal standing to claim custody because she was not the child's legal parent. The circuit court agreed, saying that "the concept of 'psychological parent' [has not been extended] to include the former same-sex partner of a biological parent."

The supreme court overturned the circuit court decision. Citing the long-term relationship Tina had with Z.B.S. and the recommendation of both Clifford K. and the boy's guardian ad litem that he stay with Tina, the court said, "We repeatedly have held that 'in a contest involving the custody of an infant, the welfare of the child is the polar star by which the discretion of the court will be guided.'"

The court agreed that Tina did not qualify as the child's "legal parent" but also said West Virginia law recognizes that "in certain circumstances, persons who are not a child's parent or legal guardian might also be proper parties to a custody proceeding." Such a person can "intervene in a proceeding adjudicating custody if the facts of the particular case warrant such intervention and if the intervention is likely to promote the best interests of the subject child(ren)," Justice Robin Jean Davis wrote for the court.

Accordingly, the supreme court ordered that the original family court decision awarding custody to Tina be reinstated.

Civil rights groups praised the decision. The ACLU of West Virginia and the ACLU's Lesbian and Gay Rights Project filed amicus briefs on Tina's behalf.

"The court, in its wisdom and compassion, has recognized Tina Burch for what she is: the surviving parent of a little boy who has already lost one of his mothers," Andrew Schneider, executive director of the ACLU of West Virginia, said in a statement. "She and her lawyer, James Douglas, have won an important victory for children and families."

The court concluded, "The tragic events that have led to the circumstances in which Z.B.S. finds himself have resulted in litigation over his permanent custodial placement only because too many people love this little boy. Oh that all of the children whose fates we must decide would be so fortunate as to be too loved."