Zoey Had Two Moms

By Julie Grace/Palm Bay

Once upon a time, just a few years ago, two women fell in love with each other. They would have married if the law allowed it. They wanted very much to have a child. And so they did, through artificial insemination. One partner gave birth to a beautiful girl named Zoey, and both shared in her care. For several years they were a happy '90s family like the one depicted in the controversial children's book Heather Has Two Mommies.

But then the mommies began to fight and, like so many couples these days, decided to break up. And now the woman who gave birth to Zoey is blocking her former partner from seeing the five-year-old child. The other woman is suing for custody rights. And a state appeals court in Florida is struggling with some heart-rending questions. Who exactly qualifies as a child's parent in the eyes of the law? Can a woman who behaves as a mother to a child be kept away from that child just because the woman is homosexual?

Penny Kazmierazak, 40, a disabled Army veteran in Palm Bay, Fla., is the woman being kept from seeing the little girl she has helped to rear, and she thinks she knows the answers to the tough questions. She thinks anyone does, if she listens to her heart. A mother, Kazmierazak says, is the person a child calls "Mommy"; the one who cares for the child physically and emotionally, without pay. She adds, "It's easy for a child to have two moms"--and the child doesn't care which one gave birth to her.

That's the proposition that Kazmierazak has placed before the Florida appeals judges. Much of her evidence is stuffed into a scrapbook that she hugged to her chest during a court hearing last month. It includes a sperm-donor list, the stick from an early pregnancy test that still shows the positive lines indicating a baby had been conceived, ultrasound pictures of Zoey in the womb and a letter from Kazmierazak's former partner. It reads: "Thank you for having our beautiful little girl with me...You are her mommy and will always be. I will never do anything to change that. I promise you." The evidence has not been heard in court.

That former partner, Zoey's biological mom, is Pam Query, 37, whose job for years has been caring for her ailing mother. She and her lawyer have not argued the facts of the case so much as the law--and the law, so far, has been on their side. When Kazmierazak first sought custody rights, the trial court ruled she had no standing in the case. Florida law recognizes parental rights of custody only for biological or adoptive parents and grandparents. Kazmierazak is none of these.

Most states allow what is called a second-parent adoption, which allows a person to adopt the children of his or her partner without ending the partner's parental status. But Florida is not one of those states. So Kazmierazak and her lawyers are, in essence, asking the appeals court to interpret the law broadly and consider her role as a parent and the best interests of the child.

Her case, and a similar one pending in Illinois, could set new precedents for the rights of nonbiological or "psychological" parents. Steve Scarborough, a lawyer for the Lambda Legal Defense Fund, which promotes homosexual rights and is representing Kazmierazak, says courts in New Mexico, Pennsylvania and Wisconsin have "recognized the harm that comes to children when relationships with nonbiological parents are severed."

Query became Zoey's biological mom because Kazmierazak was physically unable to do so. They found a suitable sperm donor who Kazmierazak says shared many of her characteristics, such as her artistic predilection. Query and Kazmierazak attended birthing classes and doctor's visits together, and Kazmierazak attended the birth. The two women brought Zoey home to Kazmierazak's house. The moms, seeking to establish a legal relationship between Kazmierazak and Zoey, were able only to execute a grant of custody to Kazmierazak, which gave her permission to take the child to doctor's visits and enroll her in day care.

Query declined to be interviewed, but her attorney, Margaret Anderson of Vero Beach, Fla., sees the case as one of attempted "child snatching" by Kazmierazak, whom she refers to as Query's "roommate." Anderson adds, "I see the case as being a slippery slope. Does someone who loves my child and helps with the care have custody rights? How can you have a baby-sitter or nanny in your home when you're out working 40 to 60 hours a week? Women are not going to allow people to love their child if they have to be wary on the basis of a 'psychological-parent custody claim' on that child."

Scarborough retorts that Kazmierazak was not a paid nanny. "She's someone who is devoted to the child," he said. "She is someone who is known to her as Mom." At least she was the last time she saw Zoey--about 18 months ago.