Hello Troy111, thanks for participating in our event today.
As others have said, it depends where the children lived and who supported them. If you mean to say that the father has no resources/income with which to support the children, then you may possibly be
entitled to claim them.
In order to be claimed as a dependent, the child must live with you for more than half the year, and you must provide more than half of their support. As there are an odd number of days in the year, it is almost always true that the child lived with one parent for more than half the year. If for some reason, the parents claim that the child spent exactly the same number of nights with each parent, then the tiebreaker rule states that the parent with the highest AGI (adjusted gross income) gets to claim the child.
If someone else has already claimed your children, you won't be able to E-file a return with them on it. However, all is not lost. You can file your return by mail claiming your dependents. When the IRS processes it, they will send you a letter, and most likely the other parent as well, suggesting that one of you amend your return. You can respond with your proof of why you are entitled to claim the children. It may take a considerable amount of time to be resolved. If the other parent won't amend, the IRS will conduct an investigation. If you are correct that you are entitled to claim the children, then you will eventually get what is due to you.
Remember that you can amend a return to claim a refund for up to 3 years from the date you filed the original return. So you can still claim your children for prior years. But be prepared for a lengthy process. Also consider the possibility of a poor reaction if the ex is required to repay past tax refunds.
There is no way to prevent your ex from filing for the children again, but if the IRS determines he did so fraudulently, he may face a penalty, which should discourage him from continuing to do so. Hope this is helpful. Best of luck!
