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Dependent Foster Child


Roly
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Question

Hello,

I have a question regarding custodial children and their elgibility as dependents for compensation.

I am a grandparent with court mandated custody of a granddaughter, due to addiction and abandonment of her mother. I am told by my VSR that this has to be an adopted child, but I think I saw a CFR reference to exceptions to this flat rule. I saw it here, I think, but cannot find it now. I filled out a statement on a for form 12-4138 explaining this, and stated that I can provide the court decision and IRS agreement for an income tax dependent claim.

I am told that there is no record of this in my file, and have to resend. This is holding uo a granted 20 month effective date retroactive check for 30% PTSD.

Does anybody know where a CFR rule on definition of dependent children is to be found. If I can, I would like to quote it to them.

I am currently awaiting a DRO Hearing to preceed a BVA hearing on my disagreement with the 30% rating. They are still sending compensation as a single vereran, even though I claimed my wife, this present grandchild dependent, and her older sister who was a dependent for a portion of the 20 month effective date.

Thanks for any input,

Roly

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You need to check it out but I think the key is having custody and than VA is supposed to pay them.

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3.57 Child.

(a) General. (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term child of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and

(i) Who is under the age of 18 years; or

(ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or

(iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. For the purposes of this section and §3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include home-school programs.

(Authority: 38 U.S.C. 101(4)(A), 104(a))

(2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term child of the veteran also includes the following unmarried persons:

(i) A person who was adopted by the veteran between the ages of 18 and 23 years.

(ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death.

(3) Subject to the provisions of paragraphs © and (e) of this section, the term child also includes a person who became permanently incapable of self-support before reaching the age of 18 years, who was a member of the veteran's household at the time he or she became 18 years of age, and who was adopted by the veteran, regardless of the age of such person at the time of adoption.

(Authority: 38 U.S.C. 101(4)(A))

(:rolleyes: Stepchild. The term means a legitimate or an illegitimate child of the veteran's spouse. A child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of §3.52, and who otherwise meets the requirements of this section is included.

© Adopted child. Except as provided in paragraph (e) of this section, the term means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. The term includes, as of the date of death of a veteran, such a child who:

(1) Was living in the veteran's household at the time of the veteran's death, and

(2) Was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and

(3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support.

(Authority: 38 U.S.C. 101(4))

(d) Definition of child custody. The provisions of this paragraph are for the purpose of determining entitlement to improved pension under §§3.23 and 3.24.

(1) Custody of a child shall be considered to rest with a veteran, surviving spouse of a veteran or person legally responsible for the child's support if that person has the legal right to exercise parental control and responsibility for the welfare and care of the child. A child of the veteran residing with the veteran, surviving spouse of the veteran who is the child's natural or adoptive parent, or person legally responsible for the child's support shall be presumed to be in the custody of that individual. Where the veteran, surviving spouse, or person legally responsible for the child's support has not been divested of legal custody, but the child is not residing with that individual, the child shall be considered in the custody of the individual for purposes of Department of Veterans Affairs benefits.

(2) The term person legally responsible for the child's support means a person who is under a legally imposed obligation (e.g., by statute or court order) to provide for the child's support, as well as a natural or adoptive parent who has not been divested of legal custody. If the child's natural or adoptive parent has remarried, the stepparent may also be considered a person legally responsible for the child's support. A child shall be considered in the joint custody of his or her stepparent and natural or adoptive parent so long as the natural or adoptive parent and the stepparent are not estranged and residing apart, and the natural or adoptive parent has not been divested of legal custody. When a child is in such joint custody the combined income of the natural or adoptive parent and the stepparent shall be included as income of the person legally responsible for support under §3.24©.

(3) A person having custody of a child prior to the time the child attains age 18 shall be considered to retain custody of the child for periods on and after the child's 18th birthday, unless the person is divested of legal custody. This applies without regard to when a child reaches the age of majority under applicable State law. This also applies without regard to whether the child was entitled to pension prior to age 18, or whether increased pension was payable to a veteran or surviving spouse on behalf of the child prior to the child's 18th birthday. If the child's custodian dies after the child has attained age 18, the child shall be considered to be in custody of a successor custodian provided the successor custodian has the right to exercise parental control and responsibility for the welfare and care of the child.

(Authority: 38 U.S.C. 501, 1521©, 1541©)

(e) Child adopted under foreign law—(1) General. The provisions of this paragraph are applicable to a person adopted under the laws of any jurisdiction other than a State. The term State is defined in 38 U.S.C. 101(20) and also includes the Commonwealth of the Northern Mariana Islands. The term veteran includes, for the purposes of this paragraph, a Commonwealth Army veteran or new Philippine Scout as defined in 38 U.S.C. 3566.

(2) Adopted child of living veteran. A person residing outside any of the States shall not be considered to be a legally adopted child of a veteran during the lifetime of the veteran unless all of the following conditions are met.

(i) The person was less than 18 years of age at the time of adoption.

(ii) The person is receiving one-half or more of the person's support from the veteran.

(iii) The person is not in the custody of the person's natural parent unless the natural parent is the veteran's spouse.

(iv) The person is residing with the veteran (or in the case of divorce following adoption, with the divorced spouse who is also a natural or adoptive parent) except for periods during which the person is residing apart from the veteran for purposes of full-time attendance at an educational institution or during which the person or the veteran is confined in a hospital, nursing home, other health-care facility, or other institution.

(3) Adopted child of deceased veteran. A person shall not be considered to have been a legally adopted child of a veteran as of the date of the veteran's death and thereafter unless one of the following conditions is met.

(i) The veteran was entitled to and was receiving for the person a dependent's allowance or similar monetary benefit payable under title 38, United States Code at any time within the 1-year period immediately preceding the veteran's death; or

(ii) The person met the requirements of paragraph (e)(2) of this section for a period of at least 1 year prior to the veteran's death.

(4) Verification. In the case of an adopted child of a living veteran, the requirements of paragraphs (e)(2)(ii), (iii) and (iv) of this section are for prospective application. That is, in addition to meeting all of the requirements of paragraph (e)(2) of this section at the time of initial adjudication, benefits are not payable thereafter for or to a child adopted under the laws of any jurisdiction other than a State unless the requirements of paragraphs (e)(2)(ii), (iii) and (iv) of this section continue to be met. Consequently, whenever Department of Veterans Affairs benefits are payable to or for a child adopted under the laws of any jurisdiction other than a State, and the veteran who adopted the child is living, the beneficiary shall submit, upon Department of Veterans Affairs request, a report, or other evidence, to determine if the requirements of paragraph (e)(2)(ii), (iii), and (iv) of this section were met for any period for which payment was made for or to the child and whether such requirements will continue to be met for future entitlement periods. Failure to submit the requested report or evidence within a reasonable time from date of request may result in termination of benefits payable for or to the child.

(Authority: 38 U.S.C. 101(4), 501)

Cross References:

Improved pension rates. See §3.23. Improved pension rates; surviving children. See §3.24. Child's relationship. See §3.210. Helplessness. See §3.403(a)(1). Helplessness. See §3.503(a)(3). School attendance. See §3.667. Helpless children—Spanish-American and prior wars. See §3.950.

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Pete, thanks for the optimism, but;

Sharon, thanks for the citations. It looks to me like my custody does not count for VA dependency, as it is not adoption. Maybe this is because there is usually no sort of child support from others if a kid is blood offspring or adopted, but in the case of a foster child, or non parental custody, some sort of child support is supposed to be given to the foster parents.

Funny, they are dependents in the eyes of the IRS.

Regards, Roly

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Yes the IRS in spite of all their "get'em for all you can" attitude towards tax payers does take off the blinders sometimes. However, when it comes to any type of compensation the VA tends to super glue their blinders to their faces.

One would think that court ordered custody which means you are 100 percent responsible for the child would cause the dummies to realize that it really does mean 100 percent responsible.

However, they will not budge on the issue as the requirement for an adoption to exist is mandated by the U.S. Code Title 38 which truimphs CFR 38 every time.

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Hello,

I have a question regarding custodial children and their elgibility as dependents for compensation.

I am a grandparent with court mandated custody of a granddaughter, due to addiction and abandonment of her mother. I am told by my VSR that this has to be an adopted child, but I think I saw a CFR reference to exceptions to this flat rule. I saw it here, I think, but cannot find it now. I filled out a statement on a for form 12-4138 explaining this, and stated that I can provide the court decision and IRS agreement for an income tax dependent claim.

I am told that there is no record of this in my file, and have to resend. This is holding uo a granted 20 month effective date retroactive check for 30% PTSD.

Does anybody know where a CFR rule on definition of dependent children is to be found. If I can, I would like to quote it to them.

I am currently awaiting a DRO Hearing to preceed a BVA hearing on my disagreement with the 30% rating. They are still sending compensation as a single vereran, even though I claimed my wife, this present grandchild dependent, and her older sister who was a dependent for a portion of the 20 month effective date.

Thanks for any input,

Roly

Have you filed a 21-686c, Declaration of Status of Dependents, to add your wife onto your award?

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Have you filed a 21-686c, Declaration of Status of Dependents, to add your wife onto your award?

Yes.

Then they sent a letter asking for dates for her first long time ago marriage, and for adoption evidence for the granddaughters. I did this on a form 21-4138, as they specified, and mailed it to them the next day, in Nov. '08. I sent it directly to the VA rather than through the American Legion, which I should have done, and they still, "Haven't received it."

I'll remail a copy and do it through my VSR this time. Since I did not adopt my ganddaughters, I'll get some retroactive at 30% for me and one dependent.

Roly

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