The IRS regulations follow actual physical custody of the child. Where the child actually spends more than half the nights of the year. That parent is the only parent automatically entitled to claim the child as a dependent. The noncustodial parent can only claim the child if the custodial parent gives the noncustodial parent a signed form 8332 release.
your remedy would be to go back to family court to enforce the custody order. The IRS will not award you the dependent, but the Family Court can order that your ex spouse sign the required form or the Family Court can hold your ex in contempt or take other actions.
There is an exception to this general rule if your custody order was signed in 2008 or earlier. In that case, you can claim the child as a dependent without form 8332. Instead, you must attach copies of certain pages of your divorce decree to your tax return and mail it to the IRS rather than e-filing. The divorce decree must itself be written with certain specific language, as detailed below in the instructions copied from the IRS.
Post-1984 and pre-2009 divorce decree or separation agreement.
If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.
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The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
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The custodial parent won't claim the child as a dependent for the year.
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The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.
The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.
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The cover page (write the other parent's social security number on this page).
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The pages that include all of the information identified in items (1) through (3) above.
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The signature page with the other parent's signature and the date of the agreement.
