WEST VA. CHILD-CUSTODY CASE: From 365Gay.com

A four year old West Virginia boy is in danger of losing his second mom following the death of his birth mother.

The state supreme Court this spring will consider to uphold a lower court ruling that gave custody of the child to his maternal grandparents, or to the partner of his birthmother, the only other parent he has ever known.

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 as a family until Smarr was tragically 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, with 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 involving gay couples.

The Circuit Court reversed the trial judge's ruling, deciding to remove Zachary from a parent he has lived with since birth and give custody instead to his grandparents. The Circuit Court refused to apply the psychological parenthood doctrine in the context of a gay couple.

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posted by Eve at 4:01 PM VOTE

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