TN 5 (09-98)

A. POLICY - CLAIMANT AND MENTALLY DISABLED CHILD LIVING TOGETHER

Whether living together regularly or temporarily, follow the same rules for determining whether the claimant has a child in care as for a child under age 16 (see RS 01310.020 and RS 01310.025).

B. POLICY - CLAIMANT AND MENTALLY DISABLED CHILD NOT LIVING TOGETHER

1. Temporary Separation

If the separation is expected to end within 6 months, the child is in the claimant's care, provided the child customarily lives with the claimant, and is in the claimant's care when they live together.

2. Separation not Temporary

a. Factors Indicating That Child Is In Care

The claimant is exercising parental control and responsibility if the claimant supervises the child's activities, participates in the important decisions about the child's physical and mental needs, and measurably controls the child's upbringing and development. The fact that the claimant has not lost the legal right to custody of the child, furnishes support for the child, and retains the right to exercise supervision is not sufficient. There must be an actual exercise of parental control and responsibility, i.e., the claimant must influence the training and development of the child in material respects.

b. Guidelines

The parent should:

• have frequent contact by personal visits or by telephone with the child's custodian;

• give the custodian instructions and/or make decisions about the child's medical care, diet, education, discipline, training rehabilitation, etc.

NOTE: If the development and training of the child is exclusively controlled by the custodian, even though paid for by the claimant, the child is not in the claimant's care. There must be at least a joint sharing of responsibility for the child's upbringing and training.

c. Decisionmaking

Decisions regarding the exercise of parental control and responsibility are highly judgmental and will depend on the facts in an individual case. Because a parent's participation will vary from case to case, there could be a finding that one parent is exercising parental control and responsibility while another is not, even when the children involved are in the same institution. SSR 64-3, C. B. 1964, p.10 illustrates a situation where the claimant has a mentally disabled child in care when the child is away.

d. Vacations or Temporary Visits

If a decision is made that a parent is not exercising parental control and responsibility for a child, a release of the child to the parent for a vacation (e.g., 30 days in the summer) or a temporary visit (e.g., 2 weekends a month) would not alter the determination that the parent does not have the child in care; thus, no benefits would be payable to the parent for periods when the child is temporarily in his/her care. The concept is who is considered to have the child in care on a permanent basis.

C. REFERENCE

For development see RS 01310.020C. and RS 01310.030E.