Wins and Losses : Gay couples have made some progress on the adoption front, with a growing number of judges allowing partners to be co-parents. But case law continues to be inconsistent--and confusing.

Kevin Gogin and Dan McPherson, psychotherapists living in San Francisco, decided about five years ago that they wanted to be fathers--together. They were told to fill out mounds of adoption forms, give it a year, and that maybe then they would get a call from someone willing to have a gay couple adopt their child.

The call came within two weeks. Two months later, they were in the delivery room when their daughter, Sarah, was born.

But as a couple, they could not adopt Sarah--unmarried couples cannot jointly adopt a child in California and gays cannot legally marry--so they employed a strategy that is used regularly in this state and is growing in popularity elsewhere.

Gogin adopted Sarah as a single parent, then became a co-parent when McPherson adopted the baby girl to become her second legal dad.

“Gays and lesbians have been adopting as single parents (in California) for a long time,” said Diane Goodman, who practices family law in Encino. “What’s new in the last few years is adding their partner as a co-parent.”

In some states, the process has received a boost from judges who have come to view two parents--even if they’re of the same sex--as better than one.

Second-parent adoptions--which have occurred in California, Oregon, Alaska and Washington for six to eight years--are beginning to gain steam elsewhere. New York, Washington D.C., Massachusetts and New Jersey all have had at least one case in the past three years in which a homosexual partner was allowed to become a legal co-parent, said Ruth Harlow, associate director of the Lesbian and Gay Rights Project at the American Civil Liberties Union.

But three recent cases that have reached the courts have contributed to gay prospective parents’ confusion and fears about what they describe as a fickle legal system.

Earlier this month, a Massachusetts court allowed two lesbians to adopt a child together--possibly paving the way for other gay couples to adopt together as opposed to employing the second-parent strategy. But in Virginia, a birth mother lost custody of her son because she has a lesbian lover. And in Seattle, a woman who gave up her son for adoption a year ago sued to regain custody after learning that a gay couple might adopt the 3-year-old boy.

On the other hand, Goodman said, second-parent adoptions have become routine in California as judges disregard recommendations by child-welfare agencies that unmarried partners be rejected.

“It was like a game,” said Dyan Ullman, who lives in a comfortably remodeled bungalow in Venice with co-parent Terri Levine and their 15-month-old daughter, Hannah. The couple was told by Goodman, their lawyer, that the L.A. County Department of Children’s Services, which made two visits to their home before the adoption was finalized, would automatically recommend against it, which the agency did, but that the judge would approve it--which he did, in June.

Ullman said she needed to adopt Hannah, Levine’s biological child, not because of fear over cases like the recent custody battle in Virginia, but because of “an awareness that the law is so fickle right now. We’d done all the wills and power of attorney and all that stuff, but we needed more. If anything happened to Hannah where I had to take her to the hospital, if I needed to pick her up from school or write her a note, who am I? I am her mother, not her birth mother’s girlfriend.

“I have the legal authority now,” Ullman added. “These are things heterosexuals take for granted that we don’t get as the mates of birth parents.”

Harlow said most research shows the need for two capable parents, not necessarily one male, one female. And that’s the concern of the courts, Goodman said. “The judges’ attitude toward these adoptions is that most of these children have one legal parent, and the judge wants to make sure they have two legal parents so that if something happens to one, there’s still another to provide for the child.

“The Virginia case is very different,” Goodman added. “The problem in Virginia is that they have a state law against two people of the same sex having oral copulation. In California, we years ago rescinded our laws regarding consenting adults . . . so there’s nothing illegal going on in California. In Virginia, they took the child away from (Sharon Bottoms, granting custody to her mother), who has not been shown to be a bad parent--she was only shown to be a lesbian.”

In the Massachusetts case, the state Supreme Court allowed two surgeons to adopt as a couple. The women, Susan Love and Helen Cooksey, who now live in Los Angeles, adopted Love’s biological daughter Tammy, 5. The complicated case required that Love adopt her own child to satisfy state law governing adoptions by couples.

Gogin, the adoptive gay father from San Francisco, hailed the Massachusetts ruling but said getting it written into California law would be difficult because few people would want to risk losing the child for a political battle. Ullman agreed, saying the important thing for her was to become Hannah’s legal mother, not to be a test case.

It is illegal for gays to adopt, as a single or a couple, in only two states--Florida and New Hampshire--and the Florida statute has been struck down twice as unconstitutional, Harlow said. (It is now on appeal in state court.) Gay and lesbian parents say it’s cases like the one in Virginia that give them a sense of urgency about making their parental roles legal.

“We planned Jesse together,” said Phyllis Burke, co-parent of a 5-year-old boy and author of the recently published “Family Values,” a book about Jesse’s birth and the adoption process Burke and birth mother Cheryl Deaner endured. The San Francisco couple went to Lesbians Considering Parenting meetings before Jesse was conceived, they chose a sperm donor together and still had to go through the same rigorous process every prospective adoptive parent--straight or gay--goes through: home visits, fingerprinting and thorough background checks.

And now that Jesse officially has two moms, they deal with such questions as, “Who will teach your son to be a man?” Burke said. “I say, ‘Do you mean teach him how to be out of touch with his feelings, or do you mean how to be brave and kind?’ ”

There is no shortage of role models for Jesse or for 5-year-old Sarah, their respective parents say. It’s a widespread misconception, Burke said, that lesbians and gay men live segregated lives. Burke proudly reports that Jesse is an excellent baseball player, thanks to batting lessons Deaner gave him that began when he was 2. Gogin, 39, who quit his job to stay home with Sarah, said his daughter has lots of playmates who are girls in their neighborhood, and all her teachers at her private Catholic school are women.

The two-father family gets plenty of stares on the street, more so than two women would attract, they believe. But surprisingly, Gogin says, most people are very supportive. He says the concept of same-sex parents “is far worse than the reality.”

The biggest fear for gay parents seems to be how society will treat their children. “We try to communicate it’s not about gender, it’s about love,” Burke said. Burke and Deaner’s family, like Gogin and McPherson’s and Ullman and Levine’s, is up front about its relationship to its schools, churches and neighborhoods. They introduce themselves to neighbors, and in each case, say they’re just another family on the block.

“A few years ago, if a lesbian or gay couple was allowed to co-adopt, that would be news,” Burke said. “Now, a lesbian couple is denied custody and that’s news. In a very weird way, that’s progress.”