A-11703, NOVEMBER 27, 1925, 5 COMP. GEN. 388

A-11703: Nov 27, 1925

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WHO IS DIVORCED FROM THE TRAINEE. IS NOT ENTITLED TO THE MAINTENANCE AND SUPPORT ALLOWANCE AUTHORIZED BY SECTION 401 OF THE WORLD WAR VETERANS' ACT OF JUNE 7. 1925: I HAVE YOUR LETTER OF OCTOBER 26. IT APPEARS THAT THERE IS NO PROVISION OF THE FRENCH LAW WHEREBY THE MOTHER MAY BE APPOINTED AS GUARDIAN OF THE CHILD. AS UNDER THE LAWS OF THE REPUBLIC SHE IS THE NATURAL GUARDIAN OF THE CHILD. IT FURTHER APPEARS THAT THE DETERMINATION OF THE QUESTION OF THE RESPONSIBILITY AND CARE OF THE CHILD IN THIS INSTANCE IS ONE FOR DETERMINATION BY THE COMPTROLLER GENERAL IN ACCORDANCE WITH HIS DECISION OF NOVEMBER 21. COPIES OF DOCUMENTS APPEARING IN THE FILE ARE SUBMITTED. HALE IS ENTITLED TO MAINTENANCE AND SUPPORT ALLOWANCE UNDER SECTION 401 OF THE WORLD WAR VETERANS' ACT.

A-11703, NOVEMBER 27, 1925, 5 COMP. GEN. 388

VETERANS' BUREAU, TRAINEES' MAINTENANCE AND SUPPORT ALLOWANCE - DEPENDENT CHILD A MINOR CHILD OF A VOCATIONAL TRAINEE, LIVING WITH ITS MOTHER IN FRANCE, WHO IS DIVORCED FROM THE TRAINEE, IS NOT ENTITLED TO THE MAINTENANCE AND SUPPORT ALLOWANCE AUTHORIZED BY SECTION 401 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 627, WHERE THE FACTS FAIL TO SHOW ACTUAL DEPENDENCY OF THE CHILD UPON THE TRAINEE, THE PRESUMPTION OF DEPENDENCY ORDINARILY EXISTING BETWEEN PARENT AND MINOR CHILD NOT BEING SUFFICIENT UNDER THIS SECTION OF THE ACT.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, NOVEMBER 27, 1925:

I HAVE YOUR LETTER OF OCTOBER 26, 1925, AS FOLLOWS:

AN APPORTIONMENT OF MAINTENANCE AND SUPPORT ALLOWANCE HAS BEEN MADE BY THIS BUREAU TO IRVING LYCETT HALE, THE MINOR CHILD OF ROY E. HALE; THIS MINOR LIVING WITH HIS MOTHER THE DIVORCED WIFE OF THE VETERAN, WHO RESIDES IN THE REPUBLIC OF FRANCE. IT APPEARS THAT THERE IS NO PROVISION OF THE FRENCH LAW WHEREBY THE MOTHER MAY BE APPOINTED AS GUARDIAN OF THE CHILD, AS UNDER THE LAWS OF THE REPUBLIC SHE IS THE NATURAL GUARDIAN OF THE CHILD. IT FURTHER APPEARS THAT THE DETERMINATION OF THE QUESTION OF THE RESPONSIBILITY AND CARE OF THE CHILD IN THIS INSTANCE IS ONE FOR DETERMINATION BY THE COMPTROLLER GENERAL IN ACCORDANCE WITH HIS DECISION OF NOVEMBER 21, 1922. ACCORDINGLY, THE ATTACHED STATEMENT OF FACTS,DATED SEPTEMBER 28, 1925, PREPARED BY THE CHIEF, CLAIMS DIVISION OF THE DALLAS REGIONAL OFFICE OF THIS BUREAU, AND COPIES OF DOCUMENTS APPEARING IN THE FILE ARE SUBMITTED, WITH THE FINDING OF THE FOLLOWING FACTS:

THAT ROY E. HALE IS ENTITLED TO MAINTENANCE AND SUPPORT ALLOWANCE UNDER SECTION 401 OF THE WORLD WAR VETERANS' ACT, 1924; THAT IRVING LYCETT HALE, HIS MINOR SON, LIVES SEPARATE AND APART FROM HIM AND IS ENTITLED TO AN APPORTIONED SHARE OF SUCH MAINTENANCE AND SUPPORT ALLOWANCE; THAT NO GUARDIAN, CURATOR OR CONSERVATOR HAS BEEN APPOINTED FOR THE CHILD AND THAT NONE CAN BE APPOINTED FOR THE CHILD OR HIS ESTATE UNDER THE LAWS OF THE REPUBLIC OF FRANCE, WHICH IS THE CHILD'S PRESENT DOMICILE; THAT THE MINOR CHILD IS NOW IN THE CUSTODY OF MARGUERITE LYCETT HALE, HIS MOTHER, AND THAT SAID CUSTODY HAS EXTENDED CONTINUOUSLY FROM JULY 2, 1921.

WITH YOUR APPROVAL OF A FINDING THAT THE MOTHER IS LEGALLY RESPONSIBLE FOR THE CARE AND CUSTODY OF THE CHILD, PAYMENT OF THE APPORTIONED AWARD IN THIS CASE WILL BE MADE BY THE REGIONAL OFFICE OF THE BUREAU AT DALLAS, TEXAS, AND ORIGINAL DOCUMENTS SUBMITTED IN USUAL COURSE.

UNDER SECTION 401 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 627, AUTHORIZING PAYMENT OF MAINTENANCE AND SUPPORT ALLOWANCE TO VOCATIONAL TRAINEES, THE ADDITIONAL ALLOWANCE FOR PERSONS DEPENDING UPON THE TRAINEE IS AUTHORIZED ONLY IF DEPENDENCY IN FACT IS SHOWN. GENERALLY, IT MAY BE PRESUMED THAT A CHILD UNDER 16 YEARS OF AGE IS DEPENDING UPON ITS FATHER FOR SUPPORT. UNDER THIS STATUTE, HOWEVER, MERE RELATIONSHIP OR EVEN A LEGAL LIABILITY FOR SUPPORT IS NOT ENOUGH, BUT THE ACTUAL DEPENDENCY OF THE CHILD MUST BE ESTABLISHED, AND THIS IS UNDERSTOOD TO BE THE BASIS UPON WHICH THE VETERANS' BUREAU HAS ADMINISTERED THIS STATUTE.

THE FACTS IN THIS CASE DO NOT SHOW THAT THE FATHER HAS EVER CONTRIBUTED OR BEEN REQUIRED TO CONTRIBUTE TO THE SUPPORT OF THE CHILD IN FRANCE AT ANY TIME AFTER HE ABANDONED THE WIFE, AND IT HAS NOT BEEN SHOWN THAT AT THE TIME THE VETERAN ENTERED TRAINING THE CHILD WAS "DEPENDING UPON HIM" FOR ITS "MAINTENANCE AND SUPPORT.' IT WOULD APPEAR TO BE DOUBTFUL THAT THE MOTHER AND CHILD IN FRANCE COULD ENFORCE SUPPORT IN THIS COUNTRY AGAINST THE FATHER. THE ADDITIONAL ALLOWANCE FOR DEPENDENTS UNDER THIS STATUTE MUST BE BASED ON THE NEED OF THE TRAINEE AND NO SUCH NEED HAS BEEN SHOWN IN THIS CASE.

YOU ARE ADVISED, THEREFORE, THAT THE MAINTENANCE AND SUPPORT ALLOWANCE AS FOR A DEPENDENT CHILD MAY NOT BE PAID IN THIS CASE.