Overview
In This Section |
This section contains the following topics:
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1. Establishing a Biological Child as a Veteran’s Child for VA Purposes
Introduction |
This topic contains information on establishing a biological child as a Veteran’s child for VA purposes, including
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Change Date |
January 14, 2016
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III.iii.5.G.1.a. Determining Whether Additional Evidence/ Information Is Necessary |
The Department of Veterans Affairs (VA) accepts as credible, for the purpose of establishing that a Veteran is the biological parent of a child, the entries a claimant makes on an application to add a child to an award. Accordingly, the evidence/information described in the remaining blocks of this topic are requiredonly if one or more of the following conditions (as described in 38 CFR 3.204(a)(2)) exist:
References: For more information about
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III.iii.5.G.1.b. Recognizing the Biological Child of a Female Veteran |
Evidence adequate to establish a child’s age, as outlined in M21-1, Part III, Subpart iii, 5.F.4, is also adequate to establish the biological child of a femaleVeteran as the Veteran’s child for VA purposes.
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III.iii.5.G.1.c. Recognizing the Biological Child of a Male Veteran Who Is Married to the Child’s Biological Mother |
Evidence adequate to establish a child’s age, as outlined in M21-1, Part III, Subpart iii, 5.F.4, is also adequate to establish the biological child of a maleVeteran as the Veteran’s child for VA purposes if
Note: If the evidence of record suggests the Veteran might not be the child’s biological father, fully develop the facts of the case before making a determination as to whether the Veteran is the child’s father.
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III.iii.5.G.1.d. Recognizing the Biological Child of a Male Veteran Who Is Not Married to the Child’s Biological Mother |
When the provisions of 38 CFR 3.204(a)(2) apply, VA requires the following to establish a child as the biological child of a Veteran, if the Veteran was not married to the child’s biological mother when the child was born:
If the Veteran does not submit the acknowledgment referenced above, or if there is reason to question its validity, accept the following in lieu of the acknowledgment:
Notes:
Reference: For more information on documenting telephone contact with a claimant, see M21-1, Part III, Subpart iii, 1.B.1.e and f.
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III.iii.5.G.1.e. Using DNA Tests to Establish a Biological Relationship |
VA may consider the results of a deoxyribonucleic acid (DNA) test when determining whether a Veteran is the biological parent of a child.
Important: VA may not require a claimant to submit to a DNA test.
Reference: For more information on using DNA tests for the purpose described in this block, see McDowell v. Shinseki, 23 Vet.App. 207, 214 (2009).
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2. 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
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Change Date |
April 25, 2019
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III.iii.5.G.2.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 M21-1, Part III, Subpart iii, 5.F.4.
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III.iii.5.G.2.b.Definition: Interlocutory Adoption |
An interlocutory decree of adoption is a decree of adoption that is not final until some
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III.iii.5.G.2.d. Effective Date of Entitlement to Benefits for an Adopted Child |
According to 38 CFR 3.403(a)(5), the effective date of a claimant’s entitlement to 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:
Important:
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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III.iii.5.G.2.e.Effect of Court Decrees on VA’s Recognition of an Adopted Child as a Veteran’s 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 recognizing an adopted child as a Veteran’s child for VA purposes, unless one of the following exists or has taken place:
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, seeM21-1, Part III, Subpart iii, 5.A.3.e.
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III.iii.5.G.2.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:
Important: The date of the earliest of the events described above represents thelast 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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III.iii.5.G.2.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,
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 benefits for the adopted child.
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III.iii.5.G.2.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.
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3. Surviving Spouse’s Adoption of a Child After the Veteran’s Death
Change Date |
April 9, 2013
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III.iii.5.G.3.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
Reference: For more information on adoptions occurring after a Veteran’s death, see
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4. Adoption in a Foreign Jurisdiction
Introduction |
This topic contains information on adoptions in a foreign jurisdiction, including
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Change Date |
April 25, 2019
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III.iii.5.G.4.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).
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III.iii.5.G.4.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:
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
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
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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III.iii.5.G.4.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 M21-1, Part III, Subpart iii, 5.G.4.e is of record and one of the following requirements is met:
Note: The requirement that the child reside with the Veteran does not apply to periods during which the child and Veteran lived apart because the
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III.iii.5.G.4.f.Required Follow-Up on Foreign Adoption Cases |
After awarding 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.
Reference: For more information about VA’s authority to certify a Veteran’s continued entitlement to benefits for an adopted child, see
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5. Instructions for Handling Cases in Which a Veteran Gives Up His/Her Child for Adoption
Introduction |
This topic contains information about handling cases in which a Veteran gives up his/her child for adoption, including
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Change Date |
November 10, 2016
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III.iii.5.G.5.a.Effect of the Adoption of a Veteran’s Child on an Award of Disability Compensation |
Effective September 14, 2015, and in accordance with 38 CFR 3.58(b), VA may no longer pay additional disability compensation to a Veteran for a child the Veteran gives up for adoption.
Follow the instructions in M21-1, Part III, Subpart iii, 5.G.5.d and the table below when removing from a Veteran’s award a child that the Veteran has given up for adoption.
Notes:
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III.iii.5.G.5.b. Effect of the Adoption of a Veteran’s Child on an Award of Veterans Pension |
There is no requirement to discontinue benefits a Veteran in receipt of Veterans Pension receives for a child that the Veteran has given up for adoption. However,38 CFR 3.57(d) prohibits VA from paying Veterans Pension for such a child if the
Because laws governing adoptions vary by State, ask Regional Counsel to decide whether the above conditions exist before determining whether it is appropriate to pay Veterans Pension for a child that a Veteran gave up for adoption.
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III.iii.5.G.5.c. Effect of the Adoption of a Veteran’s Child on the Child’s Eligibility for VA Benefits |
The adoption of a Veteran’s child does not affect the child’s eligibility for VA benefits in his/her own right as the child of a Veteran. Such benefits include Dependency and Indemnity Compensation and Dependents’ Educational Assistance, eligibility for which is not dependent on a continuing, legally recognized, parent-child relationship.
Reference: For information about a child’s right to VA benefits based on the service of two Veteran-parents (such as a biological Veteran-parent and an adoptive Veteran-parent), see M21-1, Part III, Subpart v, 4.E.1.
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III.iii.5.G.5.d. Actions to Take When Denying a Claim or Reducing Benefits Because a Veteran Gave Up His/Her Child for Adoption |
When removing a child from an award of disability compensation, or denying a claim for additional compensation for a child, because the Veteran entitled to disability compensation gave up the child for adoption, select the following on the DEPENDENCY screen in VETSNET or VBMS-A:
After taking the actions described in the above paragraph, follow the instructions in the table below for establishing a future diary.
Note: VA does not currently have the ability to electronically retain data on children that a Veteran gives up for adoption. The retention of such data is necessary, because it allows VA to identify children that are eligible for VA benefits in their own right. System upgrades that will allow VA to retain the referenced data are forthcoming. However, until they are in place, authorization activity must track the denials and reductions referenced in this block through the establishment of future diaries.
Reference: For more information about taking the actions described in this block in
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6. Establishing a Stepchild as a Veteran’s Child for VA Purposes
Introduction |
This topic contains information about establishing a stepchild as a Veteran’s child for VA purposes, including
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Change Date |
April 25, 2019
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III.iii.5.G.6.a. Definition: Stepchild |
According to 38 CFR 3.57(b), the term stepchild refers to the legitimate or illegitimate child of a Veteran’s spouse. It also refers to the child of a surviving spouse whose marriage to a Veteran VA has deemed valid.
Exception: Follow the instructions in M21-1, Part III, Subpart iii, 5.G.6.b when a child is born to the same-sex spouse of a Veteran during the course of their marriage.
Reference: For more information on deemed-valid marriages, see M21-1, Part III, Subpart iii, 5.E.7.
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III.iii.5.G.6.b. Children Born to the Same-Sex Spouse of a Veteran During the Course of Their Marriage |
If a Veteran marries someone of the same sex, and the Veteran’s spouse has a child while they are married, do not automatically treat the child as the Veteran’s stepchild.
Reference: For information on requesting an opinion from Regional Counsel, seeM21-1, Part III, Subpart iii, 5.A.3.e.
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III.iii.5.G.6.c. Requirement That the Stepchild Be a Member of the Veteran’s Household |
Under 38 CFR 3.57(a)(1), a stepchild must be or must have been “in the Veteran’s household” in order for VA to recognize the stepchild as the Veteran’s child.
Exception: VA considers a stepchild a member of the Veteran’s household if they live apart
Important:
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III.iii.5.G.6.d. Overview of the Process for Establishing a Stepchild as a Veteran’s Child |
The table below provides a general overview of the process for establishing a stepchild as a Veteran’s child for VA purposes. The remaining blocks within this topic contain the details for completing this process.
Reference: For more information on establishing a stepchild as a Veteran’s child for VA purposes, see 38 CFR 3.210(d).
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III.iii.5.G.6.e. Evidence/ Information Required to Establish a Stepchild as the Child of a Veteran |
In order to establish a stepchild as a Veteran’s child, a claimant must complete one of the forms listed in M21-1, Part III, Subpart ii, 2.B.1.b. The claimant must also provide the following:
Exception: There is no need for a claimant to provide the information/statement described in the above bullets if
The table below describes circumstances under which it might be necessary to request additional information/evidence from the claimant.
Notes:
References: For more information about
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III.iii.5.G.6.f.Effect of a Veteran’s Separation From His/Her Spouse on the Entitlement of the Veteran’s Survivors to Survivors Benefits |
If a Veteran separated from his/her spouse prior to the Veteran’s death, and the spouse was not at fault for the separation, the spouse may still be entitled to survivors benefits as the Veteran’s surviving spouse.
However, if the surviving spouse is the parent of a child that has no other relationship to the Veteran except, potentially, as a stepchild, VA will not recognize the child as a child of the Veteran unless at the time of death the child was a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c.
Important: If VA determines the child’s parent is entitled to Survivors Pension as the Veteran’s surviving spouse but does not recognize the child as the Veteran’s stepchild, do not consider the
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III.iii.5.G.6.g. Termination of a Veteran’s Marriage to His/Her Stepchild’s Parent Before VA Grants Entitlement to Benefits |
If a Veteran terminates his/her marriage with the parent of his/her stepchildbefore VA grants entitlement to compensation or pension, VA may still recognize the stepchild as a child of the Veteran upon completion of the process described in M21-1, Part III, Subpart iii, 5.G.6.d.
Important: The child must continue to be a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c.
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III.iii.5.G.6.h.Effect of Separation or Termination of a Veteran’s Marriage on a Stepchild’s Status |
A stepchild that VA already recognizes as the child of a Veteran does not automatically lose this status when the Veteran and the stepchild’s biological or adoptive parent separate or terminate their marriage. VA will continue to recognize the stepchild as the Veteran’s child as long as the stepchild remains a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c.
Follow the instructions in M21-1, Part III, Subpart iii, 5.G.6.i following receipt of notice that a Veteran and the biological or adoptive parent of his/her stepchild have separated or terminated their marriage.
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III.iii.5.G.6.i. Action to Take When a Stepchild’s Biological or Adoptive Parent Dies or Separates From or Terminates His/Her Marriage With the Veteran |
Follow the steps in the table below following receipt of notice from a Veteran that the
Important: It is not uncommon for individuals to separate from one another beforethey terminate their marriage. If a Veteran with a stepchild reports termination of his/her marriage with the stepchild’s biological or adoptive parent, do not assume the stepchild remained a member of the Veteran’s household until the marriage ended. Unless the Veteran specifically indicates the child was a member of the Veteran’s household until the marriage ended, proceed as if the Veteran did notprovide the date the stepchild ceased being a member of his/her household.
Important: Follow the instructions in
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III.iii.5.G.6.j. Handling a Veteran’s Response to VA’s Request for Information About the Status of the Veteran’s Stepchild |
Follow the instructions in the table below when a Veteran responds to one of the requests for information (regarding the status of the Veteran’s stepchild) referenced in the procedure outlined in M21-1, Part III, Subpart iii, 5.G.6.i.
Notes:
Reference: For more information about the effective date for removing a stepchild from a Veteran’s award, see 38 CFR 3.503(a)(6).
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III.iii.5.G.6.k. Action to Take if a Veteran Does Not Respond to the Notice of Proposed Adverse Action |
Follow the instructions in the table below if a Veteran does not respond within 65 days to the notice of proposed adverse action referenced in M21-1, Part III, Subpart iii, 5.G.6.i.
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Historical_M21-1III_iii_5_SecG_09-19-2014.doc | May 12, 2019 | 247 KB |
4-25-19_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 90 KB |
11-10-16_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 99 KB |
09-14-2015_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 99 KB |
5-18-16_Key_Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 96 KB |
3-6-17_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 123 KB |
2-15-18_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 106 KB |
9-6-18_Key-Changes_M21-1III_iii_5_SecG.docx | May 12, 2019 | 87 KB |
Change-July-20-2015-Transmittal-Sheet-M21-1III_iii_5_SecG_TS.docx | May 12, 2019 | 37 KB |
in Chapter 5 Relationship and Dependency, Part III General Claims Process, Subpart iii General Development and Dependency Issues
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