First, understand that the IRS doesn't care about any court order or agreement that may exist. It holds no legal weight with the IRS. You see, the IRS is a federal agency and only a federal judge can over ride the federal laws on this. Since federal courts do not handle divorces, separations or custody issues, I can tell you with 100% certainty, that will never happen.
The IRS has their own set of rules which are based on federal law. Those rules define who is the custodial parent, and who is the non-custodial parent. Basically:
- The custodial parent is the parent with whom the child lives for *more* than 182 nights of the tax year. (yes, nights; not days.) Those 182 nights do not have to be consecutive either. Additionally, temporary absences away from the custodial parent's home (such as to attend school, summer camp, hospital stays, etc.) count as a night spent with the custodial parent, provided the child returns to the custodial parent's home at the end of the temporary absence. In a case where the parental separation occured during the tax year, then the custodial parent is the one with whom the child lived the most nights of the tax year.
- The non-custodial parent is the parent who does not meet the qualificiations required of the custodial parent.
The custodial parent is the parent who can claim the child as their dependent on their tax return. Period.
In cases where the non-custodial parent wants to claim the child, the custodial parent must provide the non-custodial parent with a signed IRS Form 8332 releasing their right to claim the child as a dependent, to the non-custodial parent. With that signed form the non-custodial parent can claim the child as their dependent.
So regardless of what any court order may say, the IRS rules over ride that court order if it contradicts federal law. But that doesn't mean a lower court judge is not completely powerless.
While a lower court judge can not directly award the non-custodial parent the right to claim the child, that judge can order the custodial parent to sign IRS Form 8332, and can hold that custodial parent in contempt of court if they refuse to sign the form 8332. But under no circumstances and with no exceptions will the IRS get involved in this. Bottom line is, the non-custodial parent can not claim the child without a signed IRS Form 8332 - no matter what.
