But the bottom line is the custodial parent issue ... if they didn't live with him more than 1/2 the year then his options are limited and neither include the FSA issue. The only way for that to work is for the child to physically stay with him more than 1/2 the year so he becomes the custodial parent for that tax year. I know it is easy to just agree to I claim one & you claim 1 however that usually blows up in the non custodial parent's face later down the road if other issues arise then this false filings can be brought to light. When it comes to the IRS and a divorce situation it is wise to make very sure you are standing on firm ground when the quake hits.
