**§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 §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 §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
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(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(a), 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 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(a))

\[44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at
45 FR 25391, Apr. 15, 1980; 49 FR 47003, Nov. 30, 1984; 62 FR 51281,
Sept. 30, 1997; 65 FR 12116, Mar. 8, 2000; 72 FR 6959, Feb. 14, 2007\]

**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.

**Supplement *Highlight* references**: 41(1), 76(1).