[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.57]

[Page 181-183]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3_ADJUDICATION--Table of Contents
 
     Subpart A_Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec.  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 educational institution approved 
by the Department of Veterans Affairs. For the purposes of this section 
and Sec.  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, including schools, colleges, 
academies, seminaries, technical institutes, and universities. The term 
also includes home schools that operate in compliance with the 
compulsory attendance laws of the States in which they are located, 
whether treated as private schools or home schools under State law. The 
term ``home schools'' is limited to courses of instruction for grades 
kindergarten through 12.


(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 (c) 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))

    (b) 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 Sec.  3.52, and who 
otherwise meets the requirements of this section is included.
    (c) 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

[[Page 182]]

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 
Sec. Sec.  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 Sec.  
3.24(c).
    (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(c), 1541(c))

    (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

[[Page 183]]

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

[44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at 
45 FR 25391, Apr. 15, 1980; 49 FR 47003, Nov. 30, 1984; 65 FR 12116, 
Mar. 8, 2000; 72 FR 6959, Feb. 14, 2007]