M21-1MR, Part III, Subpart III, Chapter 5, Section G



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38. Establishing an Adopted Child as a Veteran’s Child for VA Purposes




Introduction

This topic contains information about establishing an adopted child as a Veteran’s child for VA purposes, including


  • requesting evidence to establish the adoption of a child

  • definition of

  • effective date of entitlement to additional benefits for an adopted child

  • effect of court decrees on the payment of additional benefits for a child

  • effective date for removing an adopted child from an award

  • effect of a revised birth certificate

  • inaccessible adoption records, and

  • administrative decisions regarding the adoption of a child.



Change Date

April 9, 2013



a. Requesting Evidence to Establish the Adoption of a Child

Use a locally generated letter to request a copy of one of the following documents to establish the adoption of a child by a Veteran:



Important: Oral or written certification of a child’s adoption, alone, is not sufficient to establish the child’s relationship to his/her adoptive parent.
Reference: For information about the evidence required to establish an adopted child’s age, see M21-1MR, Part III, Subpart iii, 5.F.33.



b. Definition: Interlocutory Adoption

An “interlocutory decree of adoption” is one that is not final until some


  • future point in time, or

  • future events take place.

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38. Establishing an Adopted Child as a Veteran’s Child for VA Purposes, Continued

c. Definition: Adoptive Placement Agreement

An “adoptive placement agreement” is an agreement between adoptive parents and an agency authorized by law to arrange adoptions.
The purpose of the agreement is to give adoptive parents custody of a child pending final adoption.



d. Effective Date of Entitlement to Additional Benefits for an Adopted Child

According to 38 CFR 3.403(a)(5), the effective date of a claimant’s entitlement to additional benefits for an adopted child is the date of the earliest of the following, provided the claimant notifies VA within one year of that date:


  • final adoption

  • interlocutory decree of adoption

  • adoptive placement agreement, or

  • other legal action through an authorized agency in which the claimant acquires custody of the child pending final adoption.


Important:

  • Do not pay additional benefits for the adopted child prior to the first of the month following the month entitlement begins, per 38 CFR 3.31.

  • VA may pay additional benefits for an adopted child based on an interlocutory decree of adoption, adoptive placement agreement, or other legal action for only as long as the child remains in the actual custody of the adoptive parent(s). (If VA is paying additional benefits for a child under these circumstances, and the child leaves the custody of the adoptive parent(s), follow the instructions in M21-1MR, Part III, Subpart iii, 5.G.38.f.)


Reference: For more information on establishing an adopted child as a Veteran’s child for VA purposes, see 38 CFR 3.57(c).

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38. Establishing an Adopted Child as a Veteran’s Child for VA Purposes, Continued

e. Effect of Court Decrees on the Payment of Additional Benefits for a Child

A court decree that terminates parental rights and places a child in the custody of (a) prospective adoptive parent(s) does not form the basis for paying additional benefits for the child, as an adopted child, unless one of the following exists or has taken place:


  • adoptive placement agreement

  • interlocutory decree of adoption, or

  • other legal action in which the claimant acquires custody of the child pending final adoption.


Note: If there is a question as to the effect of a court decree or order, request an opinion from Regional Counsel.
Reference: For information on requesting an opinion from Regional Counsel, see M21-1MR, Part III, Subpart iii, 5.A.3.e.



f. Effective Date For Removing an Adopted Child From an Award

If VA is paying benefits to or for a child based on an interlocutory decree of adoption, adoptive placement agreement, or other legal action, and the child leaves the custody of the adopting parent(s), or the court does not grant final approval of the adoption, 38 CFR 3.503(a)(10) requires VA to discontinue benefits payable to or for the child effective the date of the earliest of the following events:


  • child leaves the custody of the adopting parent(s)

  • rescission or termination of the interlocutory decree of adoption or adoptive placement agreement, or

  • discontinuation of any other legal, pre-adoption placement agreement.


Important: The date of the earliest of the events described above represents the last date benefits are payable to or for the child. For award-processing purposes, the day after the event represents the first date of non-payment or reduced payment.

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38. Establishing an Adopted Child as a Veteran’s Child for VA Purposes, Continued

g. Effect of a Revised Birth Certificate

Accept a copy of a revised birth certificate showing the Veteran as the parent of an adopted child to establish the child as the Veteran’s for VA purposes.
If the revised birth certificate is the only evidence of record of the adoption,


  • grant entitlement to additional benefits for the adopted child no earlier than the date VA received the revised birth certificate, and

  • advise the claimant that VA may grant entitlement from an earlier date, subject to 38 CFR 3.401(b), if he/she submits a copy of the

  • decree of adoption, or

  • adoptive placement agreement.


Rationale: A revised birth certificate does not show when an adoption took place, which is information VA needs to determine the proper date of entitlement to additional benefits for the adopted child.



h. Inaccessible Adoption Records

Do not require a claimant to furnish a final decree of adoption if the decree

Under these circumstances, a claimant must submit the following to establish an adopted child as the Veteran’s child for VA purposes:




  • a copy of the revised birth certificate, and

  • certified statements of at least two disinterested persons who have personal knowledge of the adoption.


Notes:

  • If available, obtain statements of the officials involved in the adoption.

  • If the alternative evidence is not available or is deemed inconclusive, request an examination of the final decree of adoption by a field examiner.

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38. Establishing an Adopted Child as a Veteran’s Child for VA Purposes, Continued

i. Administrative Decisions Regarding the Adoption of a Child

Use the table below to determine when an administrative decision is required to establish an adopted child as a Veteran’s child for VA purposes.




If …

Then …

  • the adoption appears legitimate on its face, and

  • evidence of the adoption does not conflict with other evidence of record

no administrative decision is required.

questions regarding the legal validity of the adoption exist

follow the instructions in M21-1MR, Part III, Subpart iii, 5.A.3.e for requesting an opinion from Regional Counsel.
Note: No administrative decision is required if

  • Regional Council returns a favorable opinion, and

  • VA ultimately recognizes the adoption.

the evidence of record does not support establishment of the adopted child as the Veteran’s child for VA purposes

follow the instructions in M21-1MR, Part III, Subpart v, 1.A.3 for preparing a two-signature administrative decision.



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