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



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39. Surviving Spouse’s Adoption of a Child After the Veteran’s Death




Change Date

April 9, 2013



a. Surviving Spouse’s Adoption of a Child After the Veteran’s Death

If a Veteran’s surviving spouse adopts a child after the Veteran’s death, establish the adopted child as the Veteran’s child for VA purposes only if


  • the claimant submits a decree of adoption showing the surviving spouse adopted the child within two years after the date of the Veteran’s death

  • the adoptive parent or child’s custodian submits a statement indicating

  • the child was living in the Veteran’s household at the time of the Veteran’s death, and

  • the Veteran or the Veteran’s spouse provided the majority of the child’s support from the time the child became a member of the Veteran’s household until the date of the decree of adoption, and

  • the statement does not conflict with other evidence of record.


Reference: For more information on adoptions occurring after a Veteran’s death, see

  • 38 CFR 3.57(c), and

  • 38 CFR 3.210(c)(2).



40. Adoption in a Foreign Jurisdiction




Introduction

This topic contains information on adoptions in a foreign jurisdiction, including


  • special rules for foreign adoptions

  • definition of foreign jurisdiction

  • children living in and adopted under the laws of a foreign jurisdiction

  • foreign adoption of a child by a surviving spouse

  • required documentary evidence, and

  • required follow-up on foreign adoption cases.



Change Date

September 19, 2014



a. Special Rules for Foreign Adoptions

In addition to other requirements outlined in this section, special rules apply to the establishment of an adopted child as a Veteran’s child for VA purposes if the adoption took place under the laws of a foreign jurisdiction.
Reference: For more information about VA’s recognition of an adoption in a foreign jurisdiction, see 38 CFR 3.57(e).



b. Definition: Foreign Jurisdiction

The term “foreign jurisdiction” refers to any jurisdiction other than that of the


  • states, territories, and possessions of the United States of America

  • District of Columbia

  • Commonwealth of Puerto Rico, and

  • Commonwealth of the Northern Mariana Islands.

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40. Adoption in a Foreign Jurisdiction, Continued


c. Children Living in and Adopted Under the Laws of a Foreign Jurisdiction

If a Veteran adopts a child under the laws of a foreign jurisdiction, and the child continues to live in a foreign jurisdiction, recognize him/her as the Veteran’s child for VA purposes only if all of the requirements below are met:


  • the documentary evidence described in M21-1MR, Part III, Subpart iii, 5.G.40.e is of record

  • the child was under age 18 at the time of adoption

  • the Veteran is providing at least half of the child’s support

  • the child is not in the custody of a biological parent (unless the biological parent is the Veteran’s spouse), and

  • the child is residing with the

  • Veteran or,

  • (in the case of termination of marriage following the adoption) Veteran’s former spouse, who is also the child’s adoptive or biological parent.


Example: A child that a Filipino Veteran adopted in the Philippines, who continues to live with the Veteran in the Philippines, is an example of a child who

  • was adopted under the laws of a foreign jurisdiction, and

  • continues to live in a foreign jurisdiction.


Note: The requirement that the child reside with the Veteran does not apply to periods during which the child and Veteran live apart because

  • the child is attending school, or

  • the child or Veteran is confined to a health care facility or other institution.


Reference: For more information about handling cases involving children who live in and were adopted under the laws of a foreign jurisdiction, see 38 CFR 3.57(e)(2).

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40. Adoption in a Foreign Jurisdiction, Continued

d. Foreign Adoption of a Child by a Surviving Spouse

If a Veteran’s surviving spouse adopts a child under the laws of a foreign jurisdiction after the Veteran’s death, recognize the adopted child as the Veteran’s child for VA purposes only if the documentary evidence described in M21-1MR, Part III, Subpart iii, 5.G.40.e is of record and one of the following requirements is met:


  • the Veteran was entitled to and was receiving additional VA benefits for the child at any time within the one-year period immediately preceding the Veteran’s death, or

  • the child was under age 18 at the time of adoption and, for a period of at least one year prior to the Veteran’s death,

  • the Veteran provided at least half of the child’s support

  • the child was not in the custody of a biological parent (unless the biological parent was the Veteran’s spouse), and

  • the child resided with the

  • Veteran or,

  • (in the case of termination of marriage following the adoption) Veteran’s former spouse, who is also the child’s adoptive or biological parent.


Note: The requirement that the child reside with the Veteran does not apply to periods during which the child and Veteran lived apart because

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40. Adoption in a Foreign Jurisdiction, Continued

e. Required Documentary Evidence

Before VA may establish a child adopted under the laws of a foreign jurisdiction as a Veteran’s child for VA purposes, evidence meeting the requirements outlined in this section must be of record along with a


  • decree of adoption, and

  • birth certificate.


Important: Do not establish a child adopted under the laws of a foreign jurisdiction as a Veteran’s child for VA purposes based on an

  • amended birth certificate alone, or

  • combination of a

  • birth certificate, and

  • adoptive placement agreement.

If the required evidence is not of record, request it from the claimant and allow 30 days for a response. If the claimant’s response raises doubt as to the validity of the decree of adoption or any factual issue, request a field examination by VA or a State Department representative.



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40. Adoption in a Foreign Jurisdiction, Continued

f. Required Follow-Up on Foreign Adoption Cases

After awarding additional benefits to a Veteran for a child adopted under the laws of a foreign jurisdiction, follow the steps in the table below to follow-up on the child’s status.




Step

Action

1

Establish a diary in the Veterans Service Network (VETSNET) by taking the following actions on the DIARIES screen:


  • select Verify Income or Dependency in the DIARY REASON field, and

  • update the DIARY DUE DATE field so that the diary will expire one year after authorization of the award that added the adopted child.


Reference: For more information on establishing a diary, see the VETSNET Awards Handbook.

2

When the diary expires, establish end product (EP) 130 with a suspense date that is 60 days from the current date.

3

  • Ask the Veteran to furnish a certified statement indicating the

  • name and address of the

  • person having custody of the child, and

  • person or persons who provide the child’s support, and

  • amount of support each person provides.

  • Advise the Veteran VA will discontinue additional benefits for the adopted child unless the Veteran provides the requested information within 60 days.

4

Did the Veteran respond within 60 days?


  • If yes, proceed to the next step.

  • If no, follow the same instructions in M21-1MR, Part III, Subpart iii, 5.K.65.a for handling a Veteran’s failure to return a dependency questionnaire, beginning with Step 4. If at any point during the process the Veteran does respond, proceed to the next step in this table.

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40. Adoption in a Foreign Jurisdiction, Continued



f. Required Follow-Up on Foreign Adoption Cases (continued)




Step

Action

5

Does the Veteran’s response indicate all of the following requirements are currently being met?


  • The Veteran is providing at least half of the child’s support.

  • The child is not in the custody of a biological parent (unless the biological parent is the Veteran’s spouse).

  • The child is residing with the

  • Veteran, or

  • (in the case of termination of marriage following the adoption) Veteran’s former spouse, who is also the child’s adoptive or biological parent.

If all of the above requirements are




  • being met, proceed to the next step, or

  • not being met, proceed to Step 7.


Notes:

  • The requirement that the child reside with the Veteran does not apply to periods during which the child and Veteran live apart because

  • the child is attending school, or

  • the child or Veteran is confined to a health care facility or other institution.

  • If there is reasonable doubt as to the validity of the Veteran’s response, request a field examination before determining whether entitlement to additional benefits for the child continues to exist.

6

Return to Step 1 of the procedures described in this table until the Veteran has confirmed compliance with the requirements in Step 5 for two consecutive years. Then proceed no further.
Important: When returning to Step 1, update the DIARY DUE DATE so that the diary will expire one year from the current date.

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40. Adoption in a Foreign Jurisdiction, Continued



f. Required Follow-Up on Foreign Adoption Cases (continued)




Step

Action

7

Prepare an administrative decision, according to the instructions in M21-1MR, Part III, Subpart v, 1.A.3, to remove the child from the Veteran’s award.

8

Did the Veteran provide the date on which compliance with the requirements in Step 5 ceased?


  • If yes,

  • remove the child from the Veteran’s award effective the day after compliance with the requirements in Step 5 ceased, and

  • follow the instructions in M21-1MR, Part III, Subpart v, 2.B for notifying the Veteran of the decision.

  • If no, follow the instructions in M21-1MR, Part III, Subpart iii, 5.K.64.d, treating the Veteran’s response in Step 5 as a response to a dependency questionnaire.




Reference: For more information about VA’s authority to certify a Veteran’s continued eligibility to additional benefits for an adopted child, see

  • 38 CFR 3.57(e)(4), and

  • 38 CFR 3.652.



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