In a fit of sensibility and reason, the court decided that what served the child's interest superseded any other in the case. You can find the local news coverage here and the fundamentalist Christian take on it here.
The brief recap is:
- Lesbian partners Tina Burch and Christina Smarr were raising the latter's son Zachary as a couple.
- In June 2002, they were in a car wreck in which Christina died and from which Tina was hospitalized.
- Christina's parents grabbed Zach.
- A family court judge ruled on the advice of the child's court representative that Tina should have custody.
- The grandparents appealed to circuit court, where the judge ruled that Tina has no standing (no civil unions or same-sex marriage protection in the Mountain State).
- The state's high court issued Tina a temporary injunction of custody.
- Although Tina gets Zach, this does not necessarily grant other non-married West Virginians standing in child-custody disputes.
Thus, there unquestionably exists a relationship of significant duration between Tina (Burch) and (the child) in which Tina (Burch) has provided for the physical, psychological, financial and emotional needs of (the child) and such that the child regards Tina (Burch) as a parental figure in his life...To reunite Tina (Burch) and (the child) through a formal custodial arrangement would be to secure the familial environment to which the child has become accustomed and to accord parental status to the adult he already views in this capacity...(praising the grandparents' efforts to keep Zach) 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.Perhaps a deciding factor was that the biological father supported Tina's claims from the initial court filings. The filing to the high court contains the particulars of the case, the state laws, and the standard for review.
By the bye, this is another of those no-will issues. The dead mom was intestate and there was no custody arrangement.
Typically you can contractually arrange for your child(ren) to go to a friend or more distant relative. In this case, the lawyer for the grandparents, Stephen Crampton, defines the high court's application of the best-interest-of-the-child laws as taking "advantage of a loophole." "This court took the opportunity to drive their truck through the loophole which the legislature left, and establish new law that I believe decimates the traditional family and elevates same-sex parenting and custody to a new level previously unknown in this state."
However, he admits defeat and probably won't appeal. There doesn't seem to be any federal issue involved.
It is ironic though that such self-described pro-family sorts would sacrifice the child to keep a lesbian from having rights to continue to raise him.
Note: Crampton is chief council for the American Family Association’s Center for Law and Policy, the Tupelo, Mississippi-based anti-everything folk.