TN 6 (01-07)
PR 01310.052 Virginia
A. PR 07-020 Validity of Adoption Between Number Holder (James L. S~) and Lonnie L. R~, SSN: ~
DATE: November 22, 2006
Under Virginia law, any natural person who is a resident of the Commonwealth of Virginia may petition the court for permission to adopt a person over eighteen years old, provided that the person to be adopted is at least fifteen years younger than the petitioner and the petitioner and the person to be adopted have known each other for at least one year prior to the filing of the petition for adoption.
Since the disabled adult adopted in this case meets those requirements and has also established his disability as well as his dependency on the insured, he may be entitled to childhood disability benefits on the account of the insured.
This is in response to your request for an opinion as to the validity of the Number Holder's adoption of Lonnie L. R~ under Virginia law, and whether a parent-child relationship exists.
Based on our review of the facts of this case and our research of the relevant statutes, regulations, and case law, we have concluded that Lonnie's adoption is valid under state law, and that it resulted in a parent-child relationship between the Number Holder and Lonnie.
The following is a summary of the relevant facts in this matter. Lonnie is a disabled thirty-seven year old adult who has lived with the Number Holder since 2001. The Number Holder is currently receiving retirement benefits. By Final Order for Adoption issued October 28, 2003, the Circuit Court for Fairfax County, VA granted the adoption of Lonnie L. R~ by the Number Holder.
On June 28, 2005, the Number Holder filed an application for Retirement benefits and listed Lonnie as his dependent. On September 8, 2006, Lonnie filed an application for childhood disability benefits on the Number Holder's record. The current request for a legal opinion arises out of Lonnie's September 2006 application for disabled child's benefits on the Number Holder's account. The issues are whether Lonnie's adoption as an adult is valid under Virginia Law, and whether a parent-child relationship exists.
Disabled adult child's benefits may be granted based on the earnings record of an insured who is entitled to old-age benefits if the applicant is (1) the insured's child, (2) dependent on the insured, (3) eighteen years old or older, and (4) has a disability that began before he reached age twenty-two. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2005). Under the Act and the implementing regulations, a "child" includes a legally adopted child. 42 U.S.C. § 416(e); 20 C.F.R. § 404.356 (2005). To determine the legality of an adoption, the Agency looks to the law of the state where the adoption took place. 20 C.F.R. § 404.356 (2005). Lonnie was adopted in Virginia. Accordingly, Virginia law applies.
Based on our research, we have concluded that Lonnie is the insured's legally adopted child. Under Virginia law, any natural person who is a resident of the Commonwealth of Virginia may petition the court for permission to adopt a person over eighteen years old, provided that the person to be adopted is at least fifteen years younger than the petitioner and the petitioner and the person to be adopted have known each other for at least one year prior to the filing of the petition for adoption. Va. Code § 63.2-1243. The consent of the person to be adopted is required. Id. In this case, the Court noted in its Final Order that Lonnie and the Number Holder knew each other for more than five years and lived together for two years. In addition, the Number Holder is more than fifteen years older than Lonnie. Finally, the Court noted, Lonnie consented to the adoption. Thus, Judge Leslie A~ of the Circuit Court of Fairfax County, Virginia declared Lonnie adopted by the Number Holder. Accordingly, Lonnie's adoption satisfies the requirements of Virginia law, and confers upon him child status under the Commissioner's regulations. 20 C.F.R. §§ 404.350(a)(1), 404.356 (2005).
In addition to demonstrating that he is the Number Holder's child, Lonnie must also demonstrate that he is dependent on the Number Holder and that his disability began before he reached aged twenty-two. 20 C.F.R. § 404.350(a) (2005). A legally adopted child is presumed dependent on the insured if he was adopted before the insured became eligible for old-age benefits. 20 C.F.R. § 404.362 (a) (2005). If the adoption occurred after the insured became entitled to old-age benefits, and the claimant was over eighteen years old at the time of the adoption, the claimant must demonstrate that he was living with or receiving at least one-half of his support from the insured for the year immediately preceding the month in which the adoption occurred. 20C.F.R.§ 404.362(b) (2005).
According to the information provided, the Number Holder was born on September 9, 1940. If this information is correct, Lonnie was adopted after the Number Holder became entitled to old-age benefits. However, even if this information is incorrect, it appears that Lonnie satisfies the dependency requirement. If Lonnie was adopted before the Number Holder became eligible for old-age benefits, then he is presumed dependent. If he was adopted after the Number Holder became eligible for old-age benefits, the Final Order issued by Judge A~ states that Lonnie had been living with the Number Holder for two years, during which time the Number Holder was his primary source of support.
The final requirement for obtaining disabled adult child's benefits is proof that Lonnie's disability began before he turned twenty-two years old. 20 C.F.R. § 404.350(a)(5) (2005). Based on the information you provided, it appears that Lonnie has been disabled since August 1, 1990, when he was twenty-one years old. If this is correct, then Lonnie has satisfied each of the requirements for obtaining disabled adult child's benefits
For the above reasons, we conclude that Lonnie's adoption is valid under Virginia law and confers upon him child status. In addition, it appears that Lonnie is dependent on the Number Holder, and that his disability began before he turned twenty-two years old. Accordingly, he is entitled to disabled adult child's benefits on the Number Holder's account.
Donna L. C~
Regional Chief Counsel
Theresa A. C~
Assistant Regional Counsel