Lesbian parent awarded custody of her child

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The West Virginia Supreme Court on Friday gave the lesbian partner of a deceased woman the parental rights over a 5-year-old child the two had been raising together.

The court recognized 39-year-old Tina Burch of Clay County, the lesbian partner of the late Christina Smarr, as the “psychological parent” of the boy, then ruled it would be in the best interest of the child to stay with Burch.

The court noted that the Legislature consistently has said, “public policy of this state is to assure that the best interest of children is the court’s primary concern in allocating custodial and decision-making responsibilities between parents who do not live together,” Davis wrote.

The child’s biological father, identified in court records as “Clifford K.,” had filed for custody on behalf of Burch and supported her in the effort to maintain custody of the child.

Attorney Jim Douglas of Sutton, who represents Tina Burch, hailed the decision.

“This court has gone probably farther than any other court in the country ... in defining what constitutes a psychological parent,” he said. “The great irony of this thing is my client was really a private person. She didn’t seek publicity. It has really been a long haul for her.

State members of the American Civil Liberties Union applauded the action, noting the ACLU had filed a friend of the court brief in support of Burch. “Today West Virginia’s Supreme Court of Appeals has recognized the most basic tenets of family law — serving the best interest of the child and preserving family stability and unity,” Terri Baur, staff attorney for the ACLU of West Virginia Foundation, said in a press release.