@queenledgen
You are approximately comment number 120 on a long discussion, if you read the prior comments you will probably find many helpful interpretations of your situation.
In general, the non-custodial parent cannot claim a child as a dependent unless the custodial parent signs a form 8332 dependent release. However, the IRS has no specific way of catching parents who file incorrectly. The only way the IRS is likely to be alerted to your situation is if you also claim your child as a dependent. In that case, the IRS will award the dependent claim to you if you are the custodial parent because you did not sign a release. The IRS does not follow and does not care about state court custody orders.
However, you also have to understand that the only way the non-custodial parent can claim the child as a dependent without form 8332 is if they file their tax return as if they were the custodial parent. This may allow them to claim certain tax benefits that only the custodial parent can claim. The ability to use a child to qualify for head of household status, claim the dependent care credit, or claim EIC always stays with the custodial parent and can’t be transferred by the form. Likewise, if you are silent as to the child and simply allow the other parent to claim him, you may be depriving yourself of certain tax benefits.
If you have a custody order, my suggestion is that you issue a form 8332 to the other parent. When you file your tax return, you will list that child on your tax return and answer the dependent interview questions to say that the child lived with you more than half the year but that you are releasing the child to the other parent with form 8332. This will ensure that you claim any benefits of being the custodial parent that might apply to your situation. It will also ensure that your ex partner cannot claim any benefits they are not entitled to.
if you want to ignore the custody order and claim both children, the IRS will not dispute this. However, the other parent can take you to Family Court to enforce the order. Family courts have a variety of powers. They can’t order you to violate the federal tax law, but, the Family Court could order you to sign the release form or pay a fine, or the Family Court could reduce your child support, or the family court could even throw you in jail for contempt. I would never advise violating a court order without getting strong legal advice. If you want to change the custody order so that you do not have to sign the release form and allow the other parent to claim the child on their tax return, you would have to go to the family court and request a modification of the court order.
