West Virginia Lesbian Moms Can Keep Foster Child

Here’s a follow-up on a West Virginia case that I discussed some time ago.   (I’ll run through the facts here quickly, but you can go back and read the earlier discussion, too.  There are some good links to contemporary news coverage there.)  The case was decided by the West Virginia Supreme Court on Friday.    You can read the actual opinion here

On December 8, 2007,  a child (here called BCG) was born to a drug-addicted mother.  The state took custody of the child and, on December 24, placed her in the home of Kathryn Kutil and Cheryl Hess.    Kutil and Hess, a lesbian couple, had been approved for both foster care and adoption. 

BCG still lives with Hess and Kutil.  In November 2008, however,  a lower court ordered the child removed from the home.   In its opinion, the judge  stated:   

The Court FINDSthat children need both mother and father and that avenues to such a result should at the least be explored by the DHHR. The Court FINDSthat untraditional family settings should not be the first and only route taken by the DHHR when searching for a permanent/adoptive placement for a child

The lower court then ordered that BCG be removed from the only home she had ever known despite evidence that the child was doing perfectly well in that “untraditional” environment, and without concern for the  potential consequences of disrupting the child’s connections with the women who had cared for her.  

The West Virginia Supreme Court reversed this decision last Friday, holding that under the circumstances the child should remain where she is.   It concluded that the trial judge’s general preference for a mother/father family was unjustified in law in West Virginia and could not override the considerations of the best interest of the particular child in question.  Given the complete lack of any evidence that BCG’s interests would be served by moving her out of her home, the lower court’s ruling could not stand.

There are two critical things that the court says in its opinion.  First, without evidence that there is a problem with the placement, there is no basis to remove BCG from the only home she’s known.   That reflects, I think, a commitment to determining the best interests of the specific child at issue.  

Second, there is no general preference for married heterosexual couples in West Virginia.   And again, this is rooted in the well-being of the individual child which, in the view of court, must be the primary concern.    If a child’s best interest is served by being with a lesbian couple, as is the case here, then that’s the result the court must reach.  

Unfortunately, under West Virginia law, Kutil and Hess cannot jointly adopt the child.   That’s because West Virginia is one of those states that does not permit both members of an unmarried couple to adopt.   (There are a number of variations on this policy out there among the states.)   It’s okay that the adoptive parent is part of an unmarried couple, but the child cannot have both members of the couple as legal parents.   Thus, either Hess or Kutil could adopt BCG, just not both of them.

That in itself is a problematic result.   BCG has, in fact, two parents.   The court has recognized the actual configuration of her family.  But there is apparently no way, at least right now in West Virginia, for that family to be granted full legal recognition. 

There are some other worthwhile points to make, but I’m going to have to safe those for tomorrow.


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