By Mubarak Dahir
Zachary Smarr was a Christmas baby.
Now four years old, the little boy was born Dec. 25, 1999.
But this Christmas, on his fifth birthday, little Zachary may not be the picture-perfect image of a happy little boy on the holidays.
It may be the last Christmas he spends in the home of the only person who he can today call mommy.
It wasn't always this way.
When Zachary was born, he had two loving mothers to dote on him. His parents were a lesbian couple, Tina Burch and Christina Smarr.
After the two women fell in love and committed to one another, they decided they wanted to raise a child together.
They determined that Smarr would carry and give birth to their child, and with the help of sperm donated from a friend, Smarr got impregnated.
From the beginning, the two women loved and cared for and raised Zachary together, like any parents do. Zachary had two mommies.
But a horrible accident took one of his mothers away from him. Now, a West Virginia court may take the remaining one.
On June 1, 2002, Smarr and Burch were riding together in their car when they were involved in a tragic accident. The car, which Burch was driving, hit a truck head-on. Smarr was killed.
Upon Smarr's death, her parents, Paul and Janet Smarr, Zachary's maternal grandparents, sought custody of the child.
In fact, within hours of the horrible death of Christina Smarr, her brother-in-law took Zachary from Burch and delivered him to the grandparents.
Paul and Janet Smarr also filed a wrongful death suit against Burch for the accident that killed their daughter.
Tina Burch says that, because of attitudes toward gays and lesbians in West Virginia, she never wanted to be very public about her son's story. In fact, when he was first born, she told her teenage daughter to "keep this within the family."
But now the shy, interview-resistant Burch is being forced to stand up and fight for her son or lose him. She is battling the grandparents in a highly emotional and high-profile battle for the custody of Zachary.
Initially, a West Virginia trial court sided with Burch, and granted her primary custody of her son. The court also gave visitation rights to the grandparents.
The court relied on a common principle in family law: that Tina Burch, while not the biological parent of Zachary, was in fact his "psychological parent."
A "psychological parent" is one who is not related to a child through genes or adoption, but has functioned as a parent to the child in every meaningful sense of the word. The child, then, views such a person as a parent.
West Virginia courts have previously acknowledged and used the "psychological parent" doctrine in child custody cases. But this was the first time it was invoked in West Virginia in a case involving gay or lesbian parents.
But, unfortunately, the lower court ruling wasn't to stand.
Earlier this fall, a Circuit Court reversed the trail judge's decision and ignored the parental role that Tina Burch has always played to Zachary. The Circuit Court refused to apply the "psychological parent" doctrine to a case where the parents were gay.
Instead, the Circuit Court decided to take Zachary away from the only surviving parent he has ever known. The Circuit Court ruled that West Virginia law does not give a surviving gay or lesbian partner the right to win legal guardianship of a former partner's child.
In doing so, the court reversed the earlier decision and ruled in favor of the grandparents, giving them custody of Zachary.
Luckily, Tina Burch has not given up the hope of continuing to raise her son. She appealed the Circuit Court's decision, and this fall, the West Virginia Supreme Court agreed to hear the case on appeal.
In a move that offers at least temporary relief, and that observers say is a good signal, the high court ruled 3 to 2 to return Zachary to Burch's custody, pending the outcome of the appeal.
Battling for her son has come with a price. Burch no longer has the privacy and anonymity she prefers.
And she says she has also been the victim of an apparent hate crime. At one point after her case went public, she says seven shots were fired into her home from a passing vehicle. She also says it took police 13 hours to respond to her 911 call about the gunfire.
But Burch says the publicity and the risks are worth it. Her son is worth fighting for. "I just want to keep my family," she told a Charleston newspaper.
The high court will now decide whether or not she gets to.
The court is set to hear the appeal sometime this spring.
When it does, the court should leave Zachary where he belongs: in the home of his mother, Tina Burch.
We all know that much more than genetics and biology make a parent. Tina Burch has exhibited all of the qualities that make her a good mother.
The only thing that is keeping her from being the mother she is and wants to be to her son are biological and legal hurdles.
The West Virginia Supreme Court must not let those conventions prevent Zachary from being raised by his loving mother.
The child has already lost one of his mothers. Should he really have to suffer the loss of the other one?
