The state Supreme Court will decide whether a baby girl will stay with the lesbian couple in Fayette County that wants to adopt her.

A judge in Fayette County has already called for the child, who is just more than a year old, to be removed from the home in favor of a more 'traditional' home with a mother and a father.

On Tuesday, the Family Policy Council of West Virginia filed a friend of the court brief asking the Supreme Court to side with the lower court ruling.

"The state should do everything it can to make sure that kids are placed in a home with a married mom and dad.  The law is simple and it is very clear when it comes to adoption," says Jeremy Dys, President and General Counsel for the Family Policy Council of West Virginia.

The child had originally been placed in foster care with Kathryn Kutil and Cheryl Hess after being born to a drug addicted mother in late 2007.  The Department of Health and Human Resources had approved the couple for foster care.

Dys says foster care is a temporary placement.  The rules, he says, are different for people who want to adopt.

"People who don't quality as adoptive parents shouldn't expect to become adoptive parents just because they want to.  The law requires that the court decide what is in the best interests of the child, not the desires of the foster parents," Dys said on Wednesday's MetroNews Talkline.

State law says single individuals and heterosexual married couples can adopt in West Virginia.  In a separate case, one of the women successfully adopted another child.

The lesbian couple now has custody of the young girl pending the outcome of the appeal the state Supreme Court is considering.

In the appeal, attorneys for the couple say the Fayette County judge is setting a 'dangerous precedent' for discriminatory treatment of nontraditional families.