In the absence of evidence that a parent or guardian has been divested of e. Presumption of Child either the legal right to exercise parental control over the child or legal Custody responsibility for the support, presume that the child is in the child’s parent’s or custody for current-law Pension purposes. guardian’s If a question arises as to whether or not some positive legal action has divested an individual of the legal right to exercise parental control over the child as well as legal responsibility for the support, request a legal child’s opinion from the Office of General Counsel. For more information on the legal right to exercise parental Reference: control, see . Under , the request for a legal opinion should specifically pose the question in terms of whether has divested the parent or guardian of positive legal action the legal right to exercise parental control over the child, or legal responsibility for the support. child’s This is because divestiture of legal custody by means other than a court order or agreement does not take the child out of custody for current-law Pension purposes. f. Determining If a child is if the child is in the custody of an institution, not or “in custody,” Surviving determine the rate of Pension by subtracting the IVAP from the child’s child’s Rate Child’s child MAPR in the Pension rate charts in , per . Based on Custody Under , if the child is in custody, pay the of the following two pension lesser rates: child alone MAPR reduced by the IVAP only, or child’s surviving spouse and child MAPR reduced by the combined IVAP of the child person having custody of the child, and spouse of the person having custody of the child if the child is in the custody of a biological or adoptive parent. The income of the spouse of a legal guardian who is not the Note: child’s parent is not a factor in determining IVAP.
e. Presumption of Child Custody In the absence of evidence that a parent or guardian has been divested of either the legal right to exercise parental control over the child or legal responsibility for the child’s support, presume that the child is in the parent’s or guardian’s custody for current-law Pension purposes. If a question arises as to whether or not some positive legal action has divested an individual of the legal right to exercise parental control over the child as well as legal responsibility for the child’s support, request a legal opinion from the Office of General Counsel. Reference: For more information on the legal right to exercise parental control, see . Under , the request for a legal opinion should specifically pose the question in terms of whether positive legal action has divested the parent or guardian of the legal right to exercise parental control over the child, or legal responsibility for the child’s support. This is because divestiture of legal custody by means other than a court order or agreement does not take the child out of custody for current-law Pension purposes. f. Determining Surviving Child’s Rate Based on Custody If a child is not “in custody,” or if the child is in the custody of an institution, determine the child’s rate of Pension by subtracting the child’s IVAP from the child MAPR in the Pension rate charts in , per . Under , if the child is in custody, pay the lesser of the following two pension rates: child alone MAPR reduced by the child’s IVAP only, or surviving spouse and child MAPR reduced by the combined IVAP of the child person having custody of the child, and spouse of the person having custody of the child if the child is in the custody of a biological or adoptive parent. Note: The income of the spouse of a legal guardian who is not the child’s parent is not a factor in determining IVAP.