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M21-1, Part III, Subpart iii, Chapter 5, Section G – Establishing a Biological Child, Adopted Child, or Stepchild as a Veteran’s Child for Department of Veterans Affairs (VA) Purposes

Overview

In This Section
This section contains the following topics:

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

Change Date
January 14, 2016

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:
  • the claimant does not reside within a State
  • the claimant’s statement on its face raises a question of its validity, or
  • there is a reasonable indication of fraud or misrepresentation.
References:  For more information about

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.

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
  • the Veteran was married to the child’s mother at the time of the child’s birth, and
  • there is no reason to believe the Veteran is not the child’s biological father.
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.

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:
  • evidence that establishes the child’s birth and age, as outlined in M21-1, Part III, Subpart iii, 5.F.4, and
  • a formal acknowledgment by the Veteran that he fathered the child.
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:
  • evidence showing the Veteran has been identified as the child’s father by judicial decree ordering him to contribute to the child’s support or for other purposes, or
  • any other secondary evidence that identifies the Veteran as the child’s father, such as
    • a church record of baptism showing the Veteran was the informant and was named as the father of the child
    • certified statements of disinterested persons who attest the Veteran accepted the child as his, or
    • information obtained from a service department, or public records such as those maintained by school or welfare agencies, showing the Veteran, with his knowledge, was identified as the father of the child.
Notes:
  • Use the telephone or a locally generated letter to request the
    • formal acknowledgement referenced in this block, or
    • other evidence VA may use to establish the parental relationship.
  • An oral statement from the Veteran, a written statement that the Veteran signed, or a completed VA Form 21-686c that the Veteran signed, satisfies the requirement for the formal acknowledgment referenced in this block.
  • Encourage claimants to e-mail or fax to VA any documentary evidence that supports their claim.
Reference:  For more information on documenting telephone contact with a claimant, see M21-1, Part III, Subpart iii, 1.B.1.e and f.

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).

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

Change Date
April 25, 2019

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:
  • decree of adoption, or
  • adoptive placement agreement.
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.

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
  • future point in time, or
  • future events take place.

III.iii.5.G.2.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.

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:
  • 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 award increased benefits for an adopted child from an effective date that is prior to the first of the month following the month entitlement begins, per 38 CFR 3.31.
  • VA may pay 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 benefits for a child under these circumstances, and the child leaves the custody of the adoptive parent(s), follow the instructions in M21-1, Part III, Subpart iii, 5.G.2.f).
Reference:  For more information on establishing an adopted child as a Veteran’s child for VA purposes, see 38 CFR 3.57(c).

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:
  • 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, seeM21-1, Part III, Subpart iii, 5.A.3.e.

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:
  • 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 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.

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,
  • grant entitlement to 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 benefits for the adopted child.

III.iii.5.G.2.h.  Inaccessible Adoption Records
Do not require a claimant to furnish a final decree of adoption if the decree
  • is not subject to routine release by the custodian of the record, or
  • may only be obtained by petitioning the court.
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.

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.
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 M21-1, Part III, Subpart iii, 5.A.3.e for requesting an opinion from Regional Counsel.
Note:  No administrative decision is required if
  • Regional Counsel returns a favorable opinion, and
  • VA ultimately recognizes the adoption.
the evidence of record doesnot support establishment of the adopted child as the Veteran’s child for VA purposes
follow the instructions in M21-1, Part III, Subpart v, 1.A.3 for preparing a two-signature administrative decision.

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

Change Date
April 9, 2013

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
  • claimant submits a decree of adoption showing the surviving spouse adopted the child within two years after the date of the Veteran’s death
  • 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
    • 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
  • statement does not conflict with other evidence of record.
Reference:  For more information on adoptions occurring after a Veteran’s death, see

4.  Adoption in a Foreign Jurisdiction

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

Change Date
April 25, 2019

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).

III.iii.5.G.4.b.  Definition:  Foreign Jurisdiction
The term foreign jurisdiction refers to any geographic area 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.

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:
  • documentary evidence described in M21-1, Part III, Subpart iii, 5.G.4.e is of record
  • child was under age 18 at the time of adoption
  • Veteran is providing at least half of the child’s support
  • child is not in the custody of a biological parent (unless the biological parent is the Veteran’s spouse), and
  • child is residing with
    • the Veteran, or
    • (in the case of termination of marriage following the adoption) the 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
  • 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).

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:
  • the Veteran was entitled to and was receiving 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
    • child was not in the custody of a biological parent (unless the biological parent was the Veteran’s spouse), and
    • child resided with
      • the Veteran, or
      • (in the case of termination of marriage following the adoption) the 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 the
  • child was attending school, or
  • child or Veteran was confined to a health care facility or other institution.

III.iii.5.G.4.e.  Required Documentary Evidence in Foreign Adoption Cases
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.

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.

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
  • a combination of a
    • birth certificate, and
    • adoptive placement agreement.

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.
Step
Action
1
Establish a diary 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.
Note:  If the diary reason referenced above is unavailable in the Veterans Benefits Management System (VBMS), select Diary Reason 30 – Local Regional Office Special Use Only.
Reference:  For more information on establishing a diary in the
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 mailing 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 the benefits it pays the Veteran 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 Step 10.
  • If no, proceed to the next step.
5
  • Clear the pending EP 130.
  • Establish EP 600.
  • Add Potential Under/Overpayment as a special issue.
Exception:  Do not add the special issue if the benefit the Veteran receives is pension.
6
Send notice of proposed adverse action to the Veteran.  In the notice, inform the Veteran that
  • VA plans to reduce his/her benefits because he/she failed to provide the certified statement referenced in Step 3, and
  • the proposed reduction, if made,
    • will be effective
      • the date VA added the adopted child to the Veteran’s award (if this is the first year the actions described in this table have been taken), or
      • the first of the month following the date the Veteran last provided the certified statement referenced in Step 3 (if this is the second year the actions described in this table have been taken), and
    • could result in the creation of an overpayment, which VA may require the Veteran to repay.
Reference:  For more information about issuing notice of a proposed adverse action, see M21-1, Part I, 2.B.2.
7
Did the Veteran provide the certified statement within 65 days?
  • If yes, proceed to Step 10.
  • If no, proceed to the next step.
8
Remove the child from the Veteran’s award effective the date proposed in Step 6.
9
  • Follow the instructions in M21-1, Part III, Subpart v, 2.B for notifying the Veteran of the action taken in Step 8.
  • Disregard the remaining steps in this table.
10
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) the 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 12.
Notes:
  • The requirement that the child reside with the Veteran does notapply to periods during which the child and Veteran live apart because the
    • child is attending school, or
    • 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 benefits for the child continues to exist.
11
Return to Step 1 of the procedures described in this table until the Veteran has confirmed compliance with the requirements referenced in Step 10 for two consecutive years.  Then take no further action.
Important:  When returning to Step 1, update the DIARY DUE DATE field so that the diary will expire one year from the current date.
12
Prepare an administrative decision, according to the instructions in M21-1, Part III, Subpart v, 1.A.3, to remove the child from the Veteran’s award.
13
Did the Veteran provide the date (month, day, and year) on which compliance with the requirements referenced in Step 10 ceased?
  • If yes, proceed to the next step.
  • If no, proceed to Step 16.
14
Remove the child from the Veteran’s award effective the day after compliance with the requirements referenced in Step 10 ceased.
15
16
Attempt to contact the Veteran by telephone to obtain the date on which compliance with the requirements referenced in Step 10 ceased.
17
Were attempts to obtain the information referenced in Step 16 successful?
  • If yes, go back to Step 14.
  • If no, proceed to the next step.
Note:  Follow the instructions in M21-1, Part III, Subpart iii, 1.B.1.e for documenting successful and unsuccessful attempts to contact the Veteran.
18
Send a letter to the Veteran that
  • asks the Veteran to provide the date on which compliance with the requirements referenced in Step 10 ceased, and
  • informs the Veteran that
    • he/she must provide the date within 30 days, and
    • if he/she does not respond within 30 days, VA may remove the child from the Veteran’s award as early as the date on which the child was added to the Veteran’s award.
19
Did the Veteran respond to the letter referenced in Step 18 within 30 days?
  • If yes, go back to Step 14.
  • If no, proceed to the next step.
20
  • Clear the pending EP 130.
  • Establish EP 600.
  • Add Potential Under/Overpayment as a special issue.
Exception:  Do not add the special issue if the benefit the Veteran receives is pension.
21
Send notice of proposed adverse action to the Veteran.  In the notice, inform the Veteran that
  • VA plans to remove the child from the Veteran’s award effective one of the following dates because he/she failed to respond to the letter referenced in Step 18:
    • the date VA added the adopted child to the Veteran’s award (if this is the first year the actions described in this table have been taken), or
    • the first of the month following the date the Veteran last provided the certified statement referenced in Step 3 (if this is the second year the actions described in this table have been taken), and
  • the proposed action, if taken, could result in the creation of an overpayment, which VA may require the Veteran to repay.
Reference:  For more information about issuing notice of a proposed adverse action, see M21-1, Part I, 2.B.2.
22
Did the Veteran provide the date (month, day, and year) on which compliance with the requirements referenced in Step 10 ceased?
  • If yes, go back to Step 14.
  • If no, proceed to the next step.
23
Remove the child from the Veteran’s award effective the date proposed in Step 21.
24
Follow the instructions in M21-1, Part III, Subpart v, 2.B for notifying the Veteran of the action taken in Step 23.
Reference:  For more information about VA’s authority to certify a Veteran’s continued entitlement to benefits for an adopted child, see

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

Change Date
November 10, 2016

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.
If VA learns of the adoption based on …
Then …
notice from the Veteran
follow the instructions in the table below.
If the Veteran gave up the child for
adoption …
Then remove the child from the Veteran’s award effective …
prior to September 14, 2015
September 14, 2015.
on or after September 14, 2015
the first of the month following the month the Veteran gave the child up for adoption.
  • information it receives from a third party, or
  • routine review of the Veteran’s claims folder
follow the instructions in M21-1, Part III, Subpart iv, 5.C.8.k.
Notes:
  • 38 CFR 3.58 references “[a] child of a Veteran adopted out of the family of the Veteran.”  It is important to understand that even if another member of the Veteran’s family adopts the Veteran’s child, by giving up the child for adoption, the Veteran
    • has severed his/her legal, parental relationship to the child, and
    • is no longer entitled to the additional rate of compensation for the child (unless the child can be recognized under a provision of 38 CFR 3.57, other than as the Veteran’s biological child)
  • The forms VA requires Veterans to submit in order to claim additional compensation for a child do not currently allow the Veteran to indicate whether he/she has given up the child for adoption.  Nevertheless, upon receipt of a claim for additional compensation for a child, do notundertake development to confirm the child’s status unless there is reason to believe the Veteran might have given up the child for adoption.

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
  • Veteran is not reasonably contributing to the child’s support, and
  • 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 it is appropriate to pay Veterans Pension for a child that a Veteran gave up for adoption.

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.

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:
  • Not an Award Dependent from the drop-down box in the AWARD STATUS field, and
  • Relationship Not Established from the drop-down box in the DECISION field.
After taking the actions described in the above paragraph, follow the instructions in the table below for establishing a future diary.
Step
Action
1
Select Diary Reason 30 – Local Regional Office Special Use Onlyfrom the drop-down box in the DIARY REASON field.
2
Enter a date in the DIARY DUE DATE field that is one year (in the future) from the current date.
3
Enter ADOPTED OUT CHILD in the REMARKS field.
4
Press the ACCEPT button.
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

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

Change Date

  
April 25, 2019

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.

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.
  • If the Veteran has legally adopted the child, VA may add the child to the Veteran’s award as an adopted child.
  • If the Veteran has not legally adopted the child, ask Regional Counsel whether VA may add the child to the Veteran’s award as a legitimate child.
Reference:  For information on requesting an opinion from Regional Counsel, seeM21-1, Part III, Subpart iii, 5.A.3.e.

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.
  • If the Veteran is still living, the stepchild must be a member of the Veteran’s household.
  • If the Veteran is deceased, the stepchild must have been a member of the Veteran’s household at the time of the Veteran’s death.
Exception:  VA considers a stepchild a member of the Veteran’s household if they live apart
  • for medical reasons, or
  • because one of them is
    • incarcerated
    • attending school, or
    • fulfilling a military service obligation.

Important:

  • VA considers a stepchild a member of a Veteran’s household if the stepchild is in the Veteran’s “constructive custody.”  A stepchild is in a Veteran’s constructive custody if the child is
    • separated from the Veteran for the reasons stated in the prior paragraph, or
    • receiving (or was receiving at the time of the Veteran’s death) at least half of his/her support from the Veteran.
  • The awarding of legal custody to someone other than the Veteran doesnot affect the stepchild’s status as a child of the Veteran as long as the child is actually a member of the Veteran’s household.

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.
Stage
Description
1
Follow the instructions in M21-1, Part III, Subpart iii, 5.B.1 and 2 for establishing the Veteran’s marriage to the stepchild’s biological or adoptive parent.
2
Establish the stepchild’s relationship to the biological or adoptive parent to whom the Veteran is/was married.
3
If the Veteran is
  • still living, establish that the child is a member of the Veteran’s household, or
  • deceased, establish that the child was a member of the Veteran’s household at the time of the Veteran’s death.
Reference:  For more information on establishing a stepchild as a Veteran’s child for VA purposes, see 38 CFR 3.210(d).

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:
  • the date (month, day, and year) and place of the Veteran’s marriage to the stepchild’s biological or adoptive parent, and
  • a statement as to whether or not the stepchild became a member of the Veteran’s household
    • before reaching age 18, or
    • between the age of 18 and 23 while enrolled in and attending school.

Exception:  There is no need for a claimant to provide the information/statement described in the above bullets if

  • the form the claimant submits is a VA Form 21-686c, and
  • the claimant
    • placed a check mark in Block 14F
    • placed a check mark in Block 14G, (if the child is between the age of 18 and 23)
    • placed a check mark in the box labeled Yes in Block 14J, and
    • made no entries for the stepchild in Blocks 15A through 15C.
The table below describes circumstances under which it might be necessary to request additional information/evidence from the claimant.
If …
Then …
the Veteran is still living, and the stepchild no longer resides with the Veteran
ask the Veteran to
  • explain why the stepchild resides elsewhere, and
  • state whether he/she provides at least one-half of the child’s total support.
at least one of the conditions described under 38 CFR 3.204(a)(2)exist
ask the claimant to provide a copy of the stepchild’s birth certificate, showing the name of both parents.
information/evidence the claimant provides to VA reveals the Veteran’s spouse is the adoptive parent of the child in question
ask the claimant to provide a copy of the corresponding
  • decree of adoption, or
  • adoptive placement agreement.
Notes:
  • An administrative decision is required only if the stepchild relationshipcannot be established.
  • Add a stepchild to a Veteran’s award even if the stepchild’s biological parent has not yet been added to the Veteran’s award as the Veteran’s spouse because, for example, the Veteran has not yet provided the biological parent’s Social Security number.  It is only the establishment of the marital relationship between the biological parent and the Veteran —not the adding of the parent to the Veteran’s award — that is required to add the stepchild to the Veteran’s award.
  • Follow the instructions in M21-1, Part III, Subpart iii, 5.A.4.b if a claimant submits one of the forms listed in M21-1, Part III, Subpart ii, 2.B.1.b that is incomplete.
  • If the claimant placed a check mark in Block 14F on VA Form 21-686c, the claimant must also complete Block 14J.  If the claimant fails to do so, consider the form incomplete.
  • Request the statements referenced in this block and/or the documentation referenced in the table above by telephone before requesting them by letter.
References:  For more information about

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
  • child as a dependent when determining the surviving spouse’s maximum annual pension rate, or
  • child’s income when calculating the surviving spouse’s income for VA purposes.

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.

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.

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
  • biological or adoptive parent of the Veteran’s stepchild has died, or
  • Veteran and the biological or adoptive parent of the Veteran’s stepchild have
    • separated from one another, or
    • terminated their marriage with one another.
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.
Step
Action
1
  • Establish EP 130.
  • Add Potential Under/Overpayment as a special issue.
Exception:  Do not add the special issue if the benefit the Veteran receives is pension.
2
Follow the instructions in M21-1, Part III, Subpart iii, 5.L.4 for removing the spouse from the Veteran’s award.
Exception:  Do not remove the spouse from the Veteran’s award if the
  • spouse and Veteran are only separated, and
  • benefit to which the Veteran is entitled is disability compensation.
Important:  Because the focus of this topic is stepchildren, additional instructions for handling the removal of a stepchild’s biological or adoptive parent from the Veteran’s award – when the Veteran fails to provide the date of death or separation, or the date his/her marriage ended – were intentionally omitted.  Such instructions exist in M21-1, Part III, Subpart iii, 5.L.4.f.
3
Follow the instructions in the table below.
If the Veteran …
Then …
made no mention of the stepchild in connection with the notice referenced in this block.
  • attempt to contact the Veteran by telephone, and
  • proceed to Step 15.
indicated the stepchild no longer lives with the Veteran but did not indicate the date on which the stepchild left the Veteran’s household
  • attempt to contact the Veteran by telephone, and
  • proceed to Step 7.
stated or implied the stepchild left the Veteran’s household on thesame day as the
  • spouse’s death
  • date the Veteran separated from his/her spouse, or
  • date the Veteran and his/her spouse ended their marriage
proceed to Step 4.
indicated the stepchild still lives with the Veteran or lives apart from the Veteran for one of the reasons listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c
indicated the stepchild no longer lives with the Veteran but the Veteran continues to support the child
proceed to Step 11.
4
Did the Veteran provide the date (month, day, and year) of the event (death, separation, or termination of marriage) that coincides with the stepchild’s departure from the Veteran’s household?
5
Attempt to contact the Veteran by telephone.
6
Were attempts to contact the Veteran by telephone successful?
  • If yes,
  • If no,
    • remove the stepchild from the Veteran’s award (under the pending EP 130) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share, and
    • proceed to Step 9.
7
Were attempts to contact the Veteran by telephone successful?
8
Did the Veteran provide the date (month, day, and year) of the event (death, separation, or termination of marriage) that resulted in the stepchild’s departure from the Veteran’s household?
  • If yes,
    • remove the stepchild from the Veteran’s award (under the pending EP 130) effective the date of the event referenced in the preceding paragraph, and
    • proceed to the next step.
  • If no,
    • remove the stepchild from the Veteran’s award (under the pending EP 130) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share, and
    • proceed to the next step.
9
  • Establish EP 600.
  • Add Potential Under/Overpayment as a special issue.
Exception:  Do not add the special issue if the benefit the Veteran receives is pension.
10
  • Prepare a notice of proposed adverse action that informs the Veteran of the following:
    • The Veteran must provide VA with the last date (month, day, and year) the child lived with the Veteran.
    • VA must remove the stepchild from the Veteran’s award effective the last date the child lived with the Veteran unless the
      • stepchild lives apart from the Veteran for one of the reasons listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c, or
      • Veteran provides at least half of the stepchild’s support.
    • If the stepchild lives apart from the Veteran for one of the reasons listed (as exceptions) in M21-1, Part III, Subpart iii, 5.G.6.c, the Veteran must provide VA with a statement to that effect.
    • If the Veteran and stepchild live apart for reasonsother than those listed (as exceptions) in M21-1, Part III, Subpart iii, 5.G.6.c, but the Veteran contributes to the stepchild’s support, the Veteran must provide VA with the
      • stepchild’s current mailing address
      • name of the stepchild’s custodian
      • total cost of supporting the stepchild, and
      • amount of support the Veteran provides to or for the stepchild.
    • If the Veteran does not provide all of the information requested in the notice of proposed adverse action within 60 days, VA may remove the stepchild from the Veteran’s award effective as early as the day after the last date the evidence of record shows the stepchild was a member of the Veteran’s household.
  • Proceed to Step 21.
Reference:  For more information about notices of proposed adverse action, see M21-1, Part I, 2.B.
11
Determine whether the Veteran provided the following:
  • last date (month, day, and year) the stepchild lived with the Veteran
  • current mailing address of the stepchild
  • name of the stepchild’s custodian
  • total cost of supporting the child, and
  • amount the Veteran contributes to the child’s support.
12
Did the Veteran provide the information referenced in Step 11?
13
Attempt to contact the Veteran by telephone to obtain the information referenced in Step 11.
14
Was the information referenced in Step 11 obtained from the Veteran?
Note:  If the Veteran is unable to immediately provide the information referenced in Step 11, give him/her until the end of the next business day to provide the information before proceeding to Step 18.
15
Were attempts to contact the Veteran by telephone successful?
  • If yes, proceed to the next step.
  • If no, proceed to Step 18.
16
Ask the Veteran if the stepchild is still a member of his/her household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c.
17
Follow the instructions in the table below.
If the Veteran indicates the stepchild …
Then …
does not live with the Veteran but the Veteran contributes to the child’s support
  • ask the Veteran for the
    • last date (month, day, and year) the stepchild lived with the Veteran
    • stepchild’s current mailing address
    • name of the stepchild’s custodian
    • total cost of supporting the stepchild, and
    • amount of support the Veteran provides to or for the stepchild
  • skip the remaining steps inthis table, and
  • follow the applicable instructions in M21-1, Part III, Subpart iii, 5.G.6.j.
Note:  If the Veteran is unable toimmediately provide the information referenced above, give him/her until the end of the next business day to provide the information before proceeding to Step 18.
is not a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c
  • ask the Veteran to provide the last date (month, day, and year) the stepchild was a member of the Veteran’s household
  • skip the remaining steps inthis table, and
  • follow the instructions in the fifth row of the table in M21-1, Part III, Subpart iii, 5.G.6.j.
18
Clear the EP 130 if it has not already been taken.
19
  • Establish EP 600.
  • Add Potential Under/Overpayment as a special issue.
Exception:  Do not add the special issue if the benefit the Veteran receives is pension.
20
Prepare a notice of proposed adverse action that informs the Veteran of the following:
  • VA must remove the stepchild from the Veteran’s award unless the
    • stepchild still lives with the Veteran
    • stepchild lives apart from the Veteran for one of the reasons listed (as exceptions) in M21-1, Part III, Subpart iii, 5.G.6.c, or
    • Veteran provides at least half of the stepchild’s support.
  • If removal of the stepchild from the Veteran’s award is necessary, the
    • effective date will be the day after the last date the stepchild was a member of the Veteran’s household
    • Veteran must repay any overpayment resulting from the continuation of payments during the due process period, and
    • Veteran may minimize any potential overpayment by requesting that VA adjust his/her award immediately.
  • If the stepchild no longer lives with the Veteran, the Veteran must provide the last date (month, day, and year) the child lived with the Veteran.
  • If the stepchild still lives with the Veteran or lives apart from the Veteran for one of the reasons listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c, the Veteran must provide VA with a statement to that effect.
  • If the Veteran and stepchild live apart for reasons other thanthose listed (as exceptions) in M21-1, Part III, Subpart iii, 5.G.6.c, but the Veteran contributes to the stepchild’s support, the Veteran must provide VA with the
    • stepchild’s current mailing address
    • name of the stepchild’s custodian
    • total cost of supporting the stepchild, and
    • amount of support the Veteran provides to or for the stepchild.
  • If the Veteran does not provide all of the information requested in the notice of proposed adverse action within 60 days, VA may remove the stepchild from the Veteran’s award effective as early as the day after the last date the evidence of record shows the stepchild was a member of the Veteran’s household.
Reference:  For more information about notices of proposed adverse action, see M21-1, Part I, 2.B.
21
Send the notice of proposed adverse action to the Veteran.
22
Did the Veteran respond to the notice of proposed adverse action within 65 days?
Important:  Follow the instructions in

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.
If …
Then …
the Veteran provided the last date the stepchild lived with the Veteran, but it is unclear whether
  • the Veteran continues to provide at least half of the child’s support, or
  • the Veteran and child live apart for one of the reasons listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c
follow the instructions in the table below.
Step
Action
1
Remove the stepchild from the Veteran’s award under EP 130 or 600 (whichever is pending) effective the day after the last date the stepchild lived with the Veteran.
2
Notify the Veteran of the reason(s) for the award adjustment.
3
In the decision notice, inform the Veteran that VA may resume the payment of additional benefits for the stepchild from as early as the date VA removed the stepchild from the Veteran’s award if the Veteran
  • continues to support the child andprovides the following to VA within one year of the date of the decision notice:
    • stepchild’s current mailing address
    • name of the stepchild’s custodian
    • total cost of supporting the stepchild, and
    • amount of support the Veteran provides to or for the stepchild, or
  • notifies VA that he/she and the child live apart for one of the reasons listed (as exceptions) in M21-1, Part III, Subpart iii, 5.G.6.c.
the stepchild
  • leave the child on the Veteran’s award
  • notify the Veteran of
    • the reason why he/she remains entitled to benefits for the stepchild, and
    • his/her responsibility to notify VA of any changes in the stepchild’s status, and
  • clear the EP
  • the stepchild lives apart from the Veteran for reasons other than those listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c, but
  • the Veteran provides at least one-half of the stepchild’s support
  • leave the child on the Veteran’s award
  • notify the Veteran of
    • the reason why he/she remains entitled to benefits for the stepchild, and
    • his/her responsibility to notify VA of any change in the percentage of the child’s support that he/she provides, and
  • clear the EP
  • the stepchild lives apart from the Veteran for reasons other than those listed (as exceptions) inM21-1, Part III, Subpart iii, 5.G.6.c, and
  • the Veteran provides less than one-half of the stepchild’s support
  • remove the stepchild from the Veteran’s award under the pending EP effective the day after the last date the stepchild was a member of the Veteran’s household, and
  • notify the Veteran of the reason(s) for the award adjustment.
Exception:  Unique circumstances may exist that justify the continued payment of benefits for a stepchild, even though the
  • stepchild lives apart from the Veteran, and
  • Veteran is not paying at least half of the stepchild’s support.
If such unique circumstances exist, a Certified or Senior Veterans Service Representative must prepare an administrative decision for approval by a coach to leave the stepchild on the Veteran’s award. If the coach approves the decision, take the actions described in the preceding row of this table.
Reference:  For information about preparing administrative decisions, see M21-1, Part III, Subpart v, 1.A.
  • the stepchild isnot a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c, and
  • the last date the stepchild was a member of the Veteran’s household isknown
  • remove the stepchild from the Veteran’s award under the pending EP effective the day after the last date the stepchild was a member of the Veteran’s household, and
  • notify the Veteran of the reason for the award adjustment.
  • the stepchild isnot a member of the Veteran’s household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c, and
  • the Veteran indicated in his/her response to the notice of proposed adverse action that the last date the stepchild was a member of the Veteran’s household isunknown
follow the instructions in the table in M21-1, Part III, Subpart iii, 5.G.6.k.
Notes:
  • Absent evidence to the contrary, accept as credible any statement regarding the constructive custody of a stepchild that VA receives from the
    • Veteran
    • stepchild’s adoptive or biological parent or custodian, and/or
    • stepchild, if he/she has reached the age of majority.
  • Follow the instructions in M21-1, Part III, Subpart v, 2.B when providing the Veteran with notice of a decision and/or award adjustment.
Reference:  For more information about the effective date for removing a stepchild from a Veteran’s award, see 38 CFR 3.503(a)(6).

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.
If …
Then …
  • the Veteran’s spouse died or the Veteran and his/her spouse separated from one another, and
  • the date of death or separation isknown
  • remove the stepchild from the Veteran’s award under the pending EP 600 effective
    • the day after the date of the spouse’s death, or
    • the day after the date of separation, and
  • follow the instructions in the first row of the table in M21-1, Part III, Subpart iii, 5.G.6.j,starting with Step 2.
  • the Veteran’s spouse died or the Veteran and his/her spouse separated from one another, and
  • the date of death or separation isunknown
  • remove the stepchild from the Veteran’s award under the pending EP 600 effective the day after the last date the evidence of record shows the stepchild was a member of the Veteran’s household, and
  • follow the instructions in the first row of the table in M21-1, Part III, Subpart iii, 5.G.6.j,starting with Step 2.
the Veteran and his/her spouse terminated their marriage
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in Chapter 5 Relationship and Dependency, Part III General Claims Process, Subpart iii General Development and Dependency Issues
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