Understand that when it comes to taxes the IRS is not bound by and does not care about any divorce decree, separation agreement or custody order. The IRS has their own rules based on federal law that *must* be adhered to. What any court says holds no weight and means nothing to/with the IRS. The only legal authority that can change that, is a federal judge. What a lower court may "order" doesn't matter. Since federal judges do not deal with divorce, separation or custody, I'm 100% confident in stating it's never going to happen.
Basically, the IRS states that the custodial parent is the one who claims the child, and they clearlyl define the custodial parent and non-custodial parent.
- Custodial parent - The one with whom the child lived for more than 182 nights (not days) of the tax year. In the case of parental separation during the tax y ear, the custodial parent is the one with whom the child lived the most nights of the year. Temporary absences such as hospital stays, school, summer camp, etc. count for the custodial parent provided the child returns to the home of the custodial parent at the end of the temporary absence.
- Non-custodial parent - The parent with whom the child did not live with for more than 182 nights of the tax year. In the case of parental separation during the tax year, it's the parent with whom the child lived with the least number of nights (not days) during the tax year.
In order for the non-custodial parent to claim the child, the custodial parent must provide the non-custodial parent a signed IRS Form 8332 releasing their right to claim the child to the non-custodial parent.
