Children & Military Benefits
THIS IS A SUMMARY OF LAW AND IS PROVIDED TO YOU AS GENERALLY GOOD ADVICE. IF YOU HAVE MATTERS RELATING TO THIS OR OTHER LEGAL SUBJECTS, BUT ARE NOT AN ATTORNEY, WE ADVISE YOU TO CONSULT WITH ONE.
INTRODUCTION
Non-traditional family arrangements are becoming more common in today’s society. The military strives to provide benefits to guardians who intend to maintain permanent custody of a child, while providing partial benefits to foster parents. The military does not provide benefits for children who are merely staying with military members for the convenience of the child’s parents.
CUSTODIANS
A custodian is a person to whom a parent or guardian has temporarily transferred the care, custody, and control of their minor child. Colorado allows a parent or guardian to delegate to another person any powers regarding the care, custody or property of their minor child, except the power to consent to the marriage or adoption of the child. The delegation must be made by a properly executed power of attorney and may be for any period up to one year. The Base Legal Office can prepare a Special Power of Attorney for childcare that satisfies Colorado’s requirements for appointing a custodian. A service member who is custodian for a minor child through a power of attorney does not receive any military benefits from the custodianship, and the child does not gain military benefits.
A person may also become the custodian of a child through a state agency. Foster parents are a good example of this. The minor child under the care of the foster parent gains limited privileges, including BX and Commissary privileges, but not medical benefits.
GUARDIANSHIP
A guardian is a person, other than the natural parent of a child, who has the right and obligation to provide for the care of a child or of an adult who has been determined to be incapable of handling his/her own affairs. The person for whom the guardian is responsible is called a "ward." The guardian is also responsible for managing the ward’s financial affairs, unless a conservator has been appointed by a court to do so. Under Colorado law, a guardian has the same powers and duties concerning his/her ward that a parent has concerning his/her minor child. However, the court can limit the guardian’s powers should it see fit to do so.
Under Colorado law a guardian is either appointed by a court or by the parent of an unmarried minor child in the parent’s will or other written document. If the guardian is appointed by a court, a hearing must be held prior to the appointment. If the guardian is appointed by a will, known as a testamentary appointment, the appointment becomes effective when the guardian files an acceptance of the guardianship with the court in which the will is being probated. Both of the minor’s parents must be dead or the surviving parent must be determined by a court to be incapacitated before the guardian can validly accept a testamentary appointment. The guardian must give written notice of acceptance to the minor and to the person having care of the minor or to the minor’s nearest living relative. If the minor is 12 years or older the minor may file a written objection to the appointment with the court. The court must then hold a hearing, after which it may appoint the testamentary nominee or any other suitable person. A guardian is usually required to make periodic reports to the court about the ward’s condition and the guardian’s management of the ward’s property.
The military will give benefits to the ward, depending on the length of the guardianship. If the guardianship is for less than a year, the child will gain BX and Commissary privileges, but not medical benefits. Guardianships of longer than a year allow the child to receive medical benefits as well.
ADOPTION
Adoption creates a parent-child relationship between the adoptive parent and the adopted child for all purposes including inheritance. Adoption relieves natural parents of parental rights and all future responsibilities toward the adopted person and terminates all legal relationships between the adopted person and his/her former relatives, including inheritance rights, unless otherwise provided in the adoption decree. Adoption of a child will terminate a natural parent’s obligation to pay future child support for the adopted child, but does not have any effect on any past due child support. Adopted children of service members are entitled to the same benefits as natural born children.
CONCLUSION
Whether or not a child receives benefits depends primarily on the length and permanence of the relationship established between the caretakers and the child. The military will give benefits in cases involving the permanent change of custody, but will only provide limited benefits for temporary custody.