Can My Husband Adopt Our Child While Overseas?

lgbt legal questions

Q: My husband and I are married in New York, and he will be deployed overseas for military service. Although we are grateful that Don’t Ask Don’t Tell was repealed, DOMA is making things difficult for us. While we sort those issues out, can you tell us if second-parent adoption of our 3-year-old son (via a surrogate) is an option for my husband while he is abroad?

A: Please thank your husband for his service to our country–and thank you for the sacrifices your family makes to support him.

In regards to the less-than-equal benefits, i.e. moving, housing, and emergency notification, created by DOMA and complicated by the repeal of DADT, further information is available through the LGBT military advocacy group, Servicemembers Legal Defense Network.

New York law allows a second-parent adoption to be filed in the county where either the potential adoptive parent lives, or where the adoptive child lives. If your husband meets the requirement for New York residency (generally, residence in the state continuously for one year) prior to deployment, military duty does not affect his status as a resident and therefore you can file the second-parent adoption in New York.

While the adoption will be allowed, the court will request a home study. This requirement should be fulfilled prior to deployment as it may become complicated if your family is already residing in different countries. Additionally, a judge will likely not waive your family’s appearance and you will need to have the resources (both time and money) to appear in court in New York together for the adoption finalization.

For answers to your adoption questions or to set up a free consultation, please visit www.greenbergadoption.com.
Evita Nancy Torre is an adoption attorney with Greenberg Adoption: The Law Offices of Clifford L. Greenberg in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Lesbian, Gay, Bisexual & Transgender Community Center, and published a children’s book (illustrated by his young daughter) about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Greenberg Adoption hosts The Center’s monthly Family Law Clinic, and exclusively practices adoption law.

Please Note: This article, or its content, does not create an attorney-client relationship. The information provided is about legal issues but it is not intended as legal advice.

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