CHARLESTON, W.Va. (AP) – The Supreme Court has agreed to decide whether state law recognizes the parental rights of same-sex partners.

Tina Burch is appealing for custody of the 4-year-old son of her lesbian partner, Christina D. Smarr, who died in a 2002 car accident.

Within hours of Smarr’s death, her brothers-in-law took the boy from Burch and handed him over to his grandparents, Paul and Janet Smarr.

Burch filed her appeal after Clay County Circuit Judge Jack Alsop ruled in December that state law doesn’t give a homosexual the right to win legal guardianship of a former partner’s child.

The Supreme Court agreed Thursday to hear the case. The justices also voted 3-2 to grant Burch temporary custody of the child. Chief Justice Elliott “Spike” Maynard and Justice Warren McGraw voted to leave the boy with his grandparents.

Burch is fighting the Smarrs’ guardianship claims by invoking a state law that allows the courts to give custody to a child’s “psychological parent.” She argues the child was as much her son as it was Christina Smarr’s.

Janet Smarr said she and her husband have fought for their grandson “tooth and nail” because they do not believe that Burch was their daughter’s lesbian lover. But they acknowledged in an order that Burch and Christina Smarr “lived together in a same-sex relationship.”

The two had raised the boy since Smarr got pregnant using sperm donated by a friend of Burch’s sister. Smarr died after Burch fell asleep at the wheel of their vehicle and crashed less than a mile from their driveway. Burch suffered with minor injuries.

A Clay County Family Court judge had ruled in Burch’s favor before Alsop’s final order.