No, it is not “fraud”. He is within his rights to claim the child, because there's a court order. . But, he may get his return rejected without a form 8332. Again, his remedy is to take you back to court and have to judge order you to sign form 8332.
On the other hand, it is also not “fraud” for you to claim the child, even though there’s a court order for the Ex to claim the child. That’s a whole separate legal issue. The IRS will honor your return if you claim the child; because their rules say you can.
I know it's complicated. Several years ago, the IRS got tired of refereeing and interpreting court orders and had congress change the law. They go by physical custody or form 8332.
You can and should just claim the child. The IRS will sent you your refund*. If you Ex doesn't like it, the IRS will not help him. If he decides to go back to the child support court, there may be different consequences, but the IRS will not take your refund back.
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*If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.
Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest. The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.
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