Q. My wife and I have claimed our 3 year old granddaughter on our taxes. She lives with us along with her mother . The baby's father wants to claim her. Can he do that?
A. Yes, but only with the written permission of the baby's mother, on IRS form 8332. Otherwise, no.
Bottom line: the mother (the custodial parent*) gets to decide who can claim the child. Of course, the person she selects must meet the rules. When a child lives with the mother and the grandparents, she can almost always allow the grandparents to claim the child (no written form or written permission is required). See rules below, particularly #6 (your income must be higher than the mother's income)
If she wants the father to claim the child, instead of the grandparents, she can do that by sending him form 8332. Without form 8332, he cannot legally claim the child.
A child closely related (grandchild counts) to a taxpayer can be a “Qualifying Child (QC)” dependent, regardless of the child's income, if:
- He is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled
- He did not provide more than 1/2 his own support
- He lived with the relative (including temporary absences) for more than half the year
- He is younger than the relative (not applicable for a disabled child)
- If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child (this essentially means that you have the parent’s permission to claim the child, if the child also lived with the parent more than half the year)
- If the parents of a child can claim the child as a qualifying child but no parent so claims the child, no one else can claim the child as a qualifying child unless that person's adjusted gross income (AGI) is higher than the highest AGI of any of the child's parents who can claim the child.
See full dependent rules at: https://turbotax.intuit.com/tax-tools/tax-tips/Family/Rules-for-Claiming-a-Dependent-on-Your-Tax-Ret...
*The IRS goes by physical custody, not legal custody. So, for tax purposes, there is no such thing as "joint custody".
