I did not read through the loooooong post above this, as I got tired of it after the first paragraph. (To much repetition of previous posts in this thread.) But you say "I have custody". Some clarification "may" be needed here as it pertains to your federal taxes.
The IRS has their own rules for who is the custodial parent, that must be followed with no exceptions. Since the IRS is a federal agency, the only legal authority that can over ride the IRS rules is a federal judge. Since a federal judge will never deal with divorce, separation or custody issues, I'm 100% confident in stating that such an over ride will never, ever happen.
What a lower court may have ruled in the way of custody is not recognized or applicable to you for "Federal" tax purposes. The IRS rules apply and that's that, basically.
The IRS has a fairly clear definition of "custodial parent" and "non-custodial parent".
- Custodial parent: The one with whom the child lived for more than 182 nights of the year. If the separation of the parents occurred during the tax year, then it's the parent with whom the child lived the most nights of the year. Temporary absences such as school, summer camp, hospital stays, nights at a friends house, etc., count for the custodial parent, provided the child returns to the same household they left at the end of the temporary absence. NIghts spent at the non-custodial parent's house do not count for the custodial parent. The nights do not have to be consecutive either.
- Non-Custodial parent: The one who does not meet the requirements to be the custodial parent.
WHile the non-custodial parent "may" qualify for the EIC for the child, that's about it. They can't claim the child care credit, or any other credit (other than the EIC if they qualify) that the custodial parent qualifies for. It doesn't matter if the custodial parent actually claims the credit or not either.
