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


Children Adopted Out of a Veteran’s Family



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41. Children Adopted Out of a Veteran’s Family




Introduction

This topic contains information about the adoption of a Veteran’s child out of the Veteran’s family, including


  • result of the adoption of a Veteran’s child out of the Veteran’s family

  • example of two Veterans entitled to additional benefits for the same child

  • example of four Veterans entitled to additional benefits for the same child

  • entitlement of a child adopted out of a Veteran’s family to death benefits, and

  • effect of a child’s adoption on a Veteran’s entitlement to Improved Pension.



Change Date

April 9, 2013



a. Result of the Adoption of a Veteran’s Child Out of the Veteran’s Family

The adoption of a Veteran’s child by a person outside the Veteran’s family does not break the relationship between the Veteran and his/her child, even if the Veteran’s parental rights have been terminated. The child


  • continues to be a child of the Veteran for VA purposes, and

  • may be recognized by VA as the child of two different Veterans if the adoptive parent is also a Veteran.


Reference: For more information on the adoption of a Veteran’s child by a person outside the Veteran’s family, see 38 CFR 3.58.



b. Example: Two Veterans Entitled to Additional Benefits for the Same Child

Scenario:

  • Arnold receives

  • disability compensation for disabilities rated 30 percent disabling, and

  • additional compensation for his son, Ted.

  • Arnold is divorced from Ted’s mother, who has remarried John.

  • John receives disability compensation for disabilities rated 100 percent disabling.

  • John has adopted Ted.


Result: Both Arnold and John may receive additional compensation for Ted. VA may simultaneously recognize Ted as Arnold’s biological child and John’s adopted child.

Continued on next page

41. Children Adopted Out of a Veteran’s Family, Continued

c. Example: Four Veterans Entitled to Additional Benefits for the Same Child

Scenario:

  • Bill and Sue

  • disability compensation for disabilities rated 30 percent or higher, and

  • additional compensation for their biological child, Andrew.

  • are both Veterans

  • are married to each other

  • each receive disability compensation for disabilities rated 30 percent or higher, and

  • adopt Andrew.


Result: All four Veterans may receive additional compensation for Andrew.



d. Entitlement of a Child Adopted Out of a Veteran’s Family to Death Benefits

The table below describes death benefits to which a child adopted out of a Veteran’s family may be entitled under 38 CFR 3.703.
Note: The term “same parental line” means parents of the same sex.




When the child’s parents are …

And …

Then VA may not pay …

two different Veterans in the same parental line

either of the Veterans died on or after June 9, 1960

separate death benefits to or for the child based on the service of each parent. If entitlement exists, the child (or his/her custodian) must elect benefits based on the service of one or the other parent.




both Veterans died before June 9, 1960

separate awards of Dependency and Indemnity Compensation (DIC) to or for the child based on the service of each parent.
Note: The child may receive DIC based on the service of one parent and pension based on the service of another parent of the same sex.

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41. Children Adopted Out of a Veteran’s Family, Continued



d. Entitlement of a Child Adopted Out of a Veteran’s Family to Death Benefits (continued)




When the child’s parents are …

And …

Then the child …

two different Veterans not in the same parental line

---

may receive more than one death benefit.
Example: If a child’s mother and father were both killed in service, the child may be eligible for two, separate DIC awards.



e. Effect of a Child’s Adoption on a Veteran’s Entitlement to Improved Pension

Under 38 CFR 3.58, a child adopted out of a Veteran’s family may remain a child of the Veteran for VA purposes. However, VA lacks authority to pay additional Improved Pension to a Veteran for such a child if


  • the Veteran is not reasonably contributing to the child’s support, and

  • the adoption divested the Veteran of

  • legal custody of the child, and

  • the accompanying legal right to exercise parental control and responsibility for the child’s care and welfare.

Because laws governing adoptions vary by State, ask Regional Counsel to decide whether the above conditions exist before determining whether a Veteran is entitled to additional benefits for a child adopted out of the Veteran’s family.


References: For more information on

  • the adoption of a child out of a Veteran’s family, see VAOPGCPREC 16-94, and

  • “child custody” for the purpose of determining entitlement to Improved Pension, see 38 CFR 3.57(d).






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