CLAY CUSTODY BATTLE GOES TO HIGH COURT

(03/09/2005)

The state Supreme Court is weighing a Clay County case that has implications for families across West Virginia. A Morgantown lawyer has argued that a Clay County woman seeking custody of her dead girlfriend's five-year-old son cannot be recognized as a psychological parent. Donald Bischoff represents the maternal grandparents, who also wants custody. Bischoff said that even though the boy's mother and her lesbian partner planned the pregnancy and lived as a family for years, Tina Burch has no status in the custody fight. Burch's girlfriend, Christina Smarr, died in a 2002 car accident. Smarr's parents seized the child within hours of the accident and Burch has been fighting for custody ever since. Smarr's attorney claims a judge revoked Burch's custody because of her sexual orientation. The grandparents say Burch has no legal standing as long as the boy's biological father is alive, but the father has no involvement in the boy's life and supports Burch having custody. The court has not said when it would hear the case.

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