Burch v. Smarr

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Burch v. Smarr

Legal decision

By: Judges of the Supreme Court of Appeals of West Virginia

Date: June 17, 2005

Source: Burch v. Smarr: Tina B., Appellant, v. Paul S., in His Official Capacity of Next Friend and Guardian of Z.B.S., an Infant, Appellee: Appeal from the Circuit Court of Clay County, Honorable Jack Alsop, Judge, Civil Action No. 02-D-100 REVERSED. Available at 〈http://www.aclu.org/lgbt/parenting/12260lgl200506 17.html〉 (accessed March 9, 2006).

About the Author: The Supreme Court of Appeals is West Virginia's highest court and the court of last resort. The five Supreme Court justices hear appeals of decisions over all matters decided in the circuit courts, including criminal convictions affirmed on appeal from magistrate court and appeals from administrative agencies.


The Supreme Court of West Virginia's 2005 decision in the case of Burch v. Smarr awarded custody of an infant, "Z.B.S.," to Tina Burch, a lesbian who had co-parented the child since birth. Custody was sought by the child's biological grandparents. The Family Court of Clay County, West Virginia, awarded custody to Burch in 2002, but a West Virginia Circuit Court of Appeals reversed the decision in 2003, awarding custody to the grandparents. Burch was allowed visitation rights. The West Virginia Supreme Court reversed the circuit court's opinion, finally awarding full custody to Burch.

Tina Burch and her lover, Christina Smarr, formed a committed partnership in the late 1990s and decided to have a child together. Smarr was impregnated by a man and gave birth to a son on Christmas Day, 1999. Burch and Smarr raised the child together until Smarr was killed in a car accident in 2002.

Smarr's parents then sought custody of their grandchild. The Family Court of Clay County awarded custody to Burch on the ground that she was the child's "psychological parent," that is, she had functioned as the child's parent in every respect since birth and was fully recognized by the child as his parent. Psychological parenthood had been recognized by West Virginia courts before, but not in a case involving a gay partner.

A state court of appeals reversed the lower court's decision and gave custody to the grandparents, stating that Burch "does not have standing to seek custody of the infant child" under West Virginia law because she "is not the legal parent of Z.B.S., [and] … the concept of 'psychological parent' [has not been extended] to include the former same sex partner of a biological parent." In other words, the concept of psychological parenthood could not be extended to a lesbian because it had never been extended to a lesbian. The Supreme Court, while agreeing that Burch was not the child's legal parent, decided that the Family Court had been right to award her custody originally: "Simply stated," the court wrote, "the child's best interests would best be served by awarding permanent custody to Tina B."


Justice Davis delivered the Opinion of the Court.

The appellant herein and petitioner below, Tina B., appeals from an order entered December 2, 2003, by the Circuit Court of Clay County. By the terms of that order, the circuit court denied Tina B.'s petition for custody of the minor child, Z.B.S., who Tina B. had raised from infancy with her now-deceased partner, finding that Tina B. lacked standing to seek an award of custody under W. Va. Code 48-9-103 (2001) (Repl. Vol. 2004). Additionally, the circuit court granted temporary custody of Z.B.S. to his maternal grandfather, the appellee herein and respondent below, Paul S. On appeal to this Court, Tina B. complains that the circuit court erred by finding that she lacked standing to assert her status as Z.B.S.'s psychological parent and to seek his custody in such capacity. Upon a review of the parties' arguments, the record presented for appellate consideration, and the pertinent authorities, we conclude that Tina B. is a proper party to seek custody of Z.B.S. Accordingly, we reverse the contrary decision of the Clay County Circuit Court.

Having established Tina B.'s relationship to the subject child, we next must determine whether her status as a psychological parent entitles her to intervene in proceedings seeking a determination of his custody. Under the unique facts and circumstances of this case, we agree with the family court's conclusion that Tina B. is a proper party to these proceedings and disagree with the contrary decision reached by the circuit court. Although we caution that not every psychological parent is, by virtue of such status, entitled to intervene in custodial proceedings pursuant to W.Va. Code 48-9-103(b), the very unusual and extraordinary facts of this case warrant extending that privilege to Tina B. Not only do the facts support such a finding herein, but the best interests of the subject child demand such a result. The best interests of Z.B.S. also militate in favor of an award of custody to Tina B., consistent with the result obtained by the Family Court of Clay County.

At the forefront of our decision is the counsel of the Legislature that the aim of the governing statute is to secure the best interests of the children whose custody is to be determined and to promote stability and certainty in their young lives. "The primary objective of this article is to serve the child's best interests, by facilitating [s[tability of the child [and] [c]continuity of existing parent-child attachments[.]" W.Va. Code §§ 48-9-1029(a)(1,3). This appreciation for stability in a child's life has also been a frequent refrain of this Court. "[S]tability in a child's life is a major concern when formulating custody arrangements." Snyder v. Scheerer, 190 W. Va. 64, 72-73, 436S.E.2d299,307-08 (1993) (per curiam) (citation omitted). Therefore, "in cases where a child has been in one home for a substantial period, [h]is environment and sense of security should not be disturbed without a clear showing of significant benefit to him." In re Brandon, 183 W. Va. at 121, 394S.E.2d at 523 (quoting Lemley v. Barr, 176 W. Va. 378, 386, 343 S.E.2d 101, 110 (1986) (internal quotations and citations omitted)). We would be remiss if we did not also reiterate that "[a] child has rights, too, some of which are of a constitutional magnitude." Lemley, 176 W. Va. at 386, 343 S.E.2d at 109 (internal quotations and citations omitted). Among these, "[a] child has a right to continued association with individuals with whom he has formed a close emotional bond—provided that a determination is made that such continued contact is in the best interests of the child." Syl. pt. 11, in part, In re Jonathan, 198 W. Va. 716, 482 S.E.2d 893. Accord Snyder v. Scheerer, 190 W. Va. at 72, 436 S.E.2d at 307 (recognizing "the right of a child to continued association with those individuals to whom the child has formed an attachment"). In this regard, "[t]he length of time that the child has remained with [such individuals(s)] is a significant factor to consider in determining this issue." In re Jonathan, 198 W. Va. at 736 n.41, 482 S.E.2d at 913 n.41.

The tragic events that have led to the circumstances in which Z.B.S. currently finds himself have resulted in litigation over his permanent custodial placement only 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. That said, it is now up to this Court to ascertain whether the family court correctly determined that Z.B.S.'s best interests would be served by awarding his custody to Tina B. first and foremost, we have determined that Tina B. is Z.B.S.'s psychological parent, with all the bonds, attachments, care taking functions, and responsibilities that such status entails. In reaching this decision, we have found that both of the child's biological parents not only acquiesced, but actively fostered, the relationship that has developed between Tina B. and Z.B.S.

We are also persuaded by the current situation into which the child has been thrust upon the tragic death of his mother: the other parental figure with whom he has continuously resided, Tina B., is eager to legally assume his custody and to continue attending to his daily needs, and his biological father, his sole surviving legal parent, readily agrees and enthusiastically consents to such an arrangement. To reunite Tina B. and Z.B.S. 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. Simply stated, an award of custody to Tina B., having found no indication that she is unfit to serve as the minor's custodian, would promote Z.B.S.'s best interests by allowing continuity of care by the person whom he currently regards as his parent and would thus provide stability and certainty in his life.

For these reasons, then, we find that Tina B. was entitled to participate in Z.B.S.'s custodial proceedings. Accordingly, we reverse the December 2, 2003, ruling of the Clay County Circuit Court which denied Tina B. permission to participate in Z.B.S.'s custodial determination. Furthermore, remanding this case for additional proceedings to determine Z.B.S.'s permanent custody would be futile. The family court has consistently held that the best interests of Z.B.S. dictate that his custody be awarded to Tina B., which finding is consistent with the guardian ad litem's recommendations and the psychological evidence presented below.

Simply stated, the child's best interests would best be served by awarding permanent custody of Z.B.S. to Tina B. Thus, we reinstate the July 25, 2003, decision of the Clay County Family Court awarding custody of the minor child Z.B.S. to Tina B.


The West Virginia Supreme Court's decision in Burch v. Smarr is significant partly because of its contrast to a decision by a Virginia court in 1995, Bottom v. Bottom, which removed a child from the custody of his lesbian biological mother and put him in the custody of the child's grandmother (the biological mother's own mother). In that case, the state of Virginia's anti-sodomy law was invoked. The court made the distinction that while "a lesbian mother is not per se an unfit parent … Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth [of Virginia]; thus, that conduct is another important consideration in determining custody." That is, the mother's private practice of oral sex with consenting adult women was presumed to make her guilty of a felony (although she had never been accused or convicted under the sodomy law), and it was this criminality that made her an unfit parent. Virginia sodomy laws criminalized all anal and oral sexual behaviors, not merely homosexual acts. Virginia also has laws criminalizing premarital sex. A view of lesbianism as inherently troubling was part of the court's rationale for removing the child from his mother's custody. The court said that the "moral climate in which the child is to be raised" is an "important consideration" in deciding custody. However, it also noted other factors, such as that the mother had "struck the child when it was merely one year old with such force as to leave her fingerprints on his person."

By the 1990s, Virginia was in the minority among U.S. states in retaining a sodomy law. Only fourteen U.S. states (plus Puerto Rico) retained laws outlawing sodomy as of 2003. All the other states had repealed these laws, mostly in the period 1960–1990. Thus, no mention was made of West Virginia's sodomy law in Burch v. Smarr because the law had been repealed in 1976. In 2003, the U.S. Supreme Court, which in 1986 had upheld the constitutionality of Georgia's anti-sodomy law, reversed itself and declared the antisodomy law of Texas (and, by implication, those of all other states) unconstitutional.

Burch v. Smarr reflects the ways in which the legal legitimacy of homosexuality has been increasing in U.S. society for the last several decades. However, this case was not decided on novel legal or technical grounds. The principle that a child's "psychological parent" might be properly designated the child's legal guardian had already been applied to heterosexual partners in West Virginia and to homosexual parents in other states. Further, the standard of the child's "best interests," also emphasized by the West Virginia Supreme Court, is simply the standard always cited by all courts rendering custody decisions. Burch v. Smarr thus typifies a trend in U.S. custody, foster-care, adoption, and parenting law toward recognizing the legitimacy of homosexuals as parents. Nevertheless, most states do not formally require equal treatment for homosexual custodians or adoptive parents, and individual family-court judges retain great power over particular decisions, often on a county-by-county basis. On-the-ground practice thus varies widely and in a patchwork way throughout the United States, despite high-profile decisions such as Burch v. Smarr.


Web sites

American Civil Liberties Union. "The Bigger Picture: Gay Parenting and the Law." 〈http://www.lethimstay.com/bigpicture_parenting.html〉 (accessed March 9, 2006).

American Psychological Association. "Lesbian and Gay Parenting." 〈http://www.apa.org/pi/parent.html〉 (accessed March 31, 2006).