The West Virginia Supreme Court has awarded custody of a five-year-old Clay County boy to his dead mother's lesbian partner, saying that a "psychological parent" can intervene in custody battles.

A "psychological parent" is defined as a person who fulfills a child's psychological and physical needs and provides emotional and financial support.

The American Civil Liberties Union praised the ruling.

The decision came in an appeal by Clay resident Tina Burch, who challenged a Clay County Circuit Court ruling that gave custody to the boy's maternal grandparents.

Christina Smarr, Burch's partner and the boy's mother, died in a 2002 car accident.

The women had lived together since 1998, over a year before the child was born and continued to raise him as a parenting couple.

Within hours after Smarr's death, relatives took the boy and handed him over to grandparents Paul and Janet Smarr.

A Family Court judge granted custody to Burch, but a Clay County circuit judge ruled that state law doesn't give a homosexual the right to legal guardianship of a former partner's child.

Yesterday, in a split decision, the court overturned that ruling.

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