West Virginia court sides with gay couple in custody case

Posted on 12 Jun 2009 at 10:12am
By Tim Huber Associated Press

Trial court judge had ordered child be removed and placed with heterosexual couple

CHARLESTON, W.Va. — The West Virginia Supreme Court ruled Friday, June 5 that a gay couple should have custody of an 18-month old foster child, overturning a judge’s order that the girl should be placed with a heterosexual couple who might adopt her.

In an unsigned opinion issued Friday, the court barred enforcing Fayette County Circuit Judge Paul Blake Jr.’s order that the girl should be taken away from Kathryn Kutil and Cheryl Hess. The girl has remained in the couple’s custody throughout the court proceedings.

The court noted there was no reason to believe the girl wasn’t thriving with Hess and Kutil, and said there was no legal reason to take her away from the couple.

"As a matter of fact, the court was never presented with any actual evaluation of the home or evidence of the quality of the relationship" the girl had with Kutil and Hess, the justices said. "All indications thus far are that [the girl] has formed a close emotional bond and nurturing relationship with her foster parents, which can not be trivialized or ignored."

The justices said Blake only ruled in favor of removing the child to promote placing her with a heterosexual couple.

"The conclusion itself represents a blurring of legal principles applicable to abuse and neglect and adoption," the decision said. "Even if our current statutes, rules and regulations could somehow be read to support the adoption preference proposed by [Blake] such a newfound principle would need to be harmonized with established law."

Instead, the court said either Hess or Kutil, as qualified foster parents, "would at the very least need to be considered if not favored in the selection of the prospective adoptive home."

The decision is still sinking in, but Kutil and Hess are pleased, said their attorney, Anthony Ciliberti Jr. State law doesn’t allow same-sex couples to adopt children, but single people can. "We’re hopeful that they’ll be able to move forward," Ciliberti said.

As for the girl, Ciliberti says she appears to be thriving.

"I just left her house. I don’t think she understood what was going on, but she was all smiles and seemed to be doing very well."

The conservative Family Policy Council of West Virginia, which filed a friend of the court brief in the case, criticized the ruling.

"This court has placed the emotional desires of two adults above the best interests of the child as stipulated by state law," President Jeremy Dys said in a statement. "Foster parenting is, by definition, a temporary arrangement with no guarantee or promise of adoption. Couples who do not qualify as adoptive parents should not expect to become adoptive parents."

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