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Chapter 35/DEA Benefits for Granddaughter

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DDS77

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I have had court appointed custody of my granddaughter since 2010.  Her mother is deceased, her father is estranged and in another state.  He has resisted us adopting her in the past.

I currently have an adoption lawyer and we will be filing with the court soon.  However, the adoption would not be finalized (Virginia) until after she has turned 18 in March of this year.

My primary question is:  Is there a rule/law/policy that will keep her from qualifying for Chapter 35 because of the date of the adoption?  As I said, I have had court ordered custody since 2010.  

BTW, I am 100% P&T with a biological son receiving benefits.

Any help would be appreciated!!

Thanks
DDS

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The VA don't recognize court appointed custody for chapter 35 benefits. Nothing can happen until the legal adoption is final. Once the adoption is final, you can apply for her dependent status which will be good as long as she stays in school or turns twenty six years old.

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Here is how the regulations define "dependent".  Your attorney should interpret this regulation to see if he thinks "custody" means dependent, I dont want to make that interpretation as "My interpretation" of the regulations means nothing.  

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§ 3.204 Evidence of dependents and age.

(a)

(1) Except as provided in paragraph (a)(2) of this section, VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216).

(2) VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question.

My unsubstantiated "lay interpretation" suggests that if you claim "that child" as a dependent on your tax return, then that child is your dependent.  With the IRS definition, you have to provide more than 50 percent of a child's support.  

THIS is IRS view on this:

https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent

Your attorney may be able to research case law on this, my guess is its "already decided" the circumstances by which a grandchild can be claimed as a dependent.  

It is a big deal to your grandchild, as DEA benefits are worth Tens of thousands of dollars if grand daughter goes to college.  

As an alternative, you can apply, making dead certain you do NOT lie or misrepresent this as your adopted child, but rather a dependent grandchild.  Lying or deception is fraud, applying for benefits telling them the truth is not.  I would have the date your grandaughter began living with you and, if you received support from the grandchild's parents.  If you accepted money as support from one or more of the childs parents, then the child may well be a dependent of that parent.  

You can certainly 'ask" the childs parents if they claim her as a dependent.  IRS is very picky, they are quick to point out 2 people, living apart, cant BOTH be providing "over 50 percent" of the child's support.  Only one can provide "over 50 percent".  

If the child lives with you more than 6 months of the year, and you dont get support checks, its pretty clear you provide over 50 percent of their support.  

If in doubt, ask your attorney.  

It may be a good idea to establish dependency "before" the child goes to college.  Again, ask your attorney.  

If the child moves away to college, and gets a job, along with parent's financial help, it may well make things muddy.  

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My humble opinion is if you apply for dependency, submit the custody document(s), and, "do not make false or misleading statements to VA", you will be fine.  VA employees make decisions all the time, and not everyone agrees with them.  

I dont know what/how they will decide, but, even if denied, you can submit new and material evidence under 38 cfr 3.156 if/when the court grants you the adoption.  

 

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