Custodial Parent Wondering If She Can Claim Dependent?

Forum|Forum|3 years ago
January 17, 2023
9 replies
82 views

I had the baby in 2021- the noncustodial parent has never even met the baby. We didn't live together after the baby was born. The noncustodial parent doesn't have any overnights or inquire about the baby. He is ordered to pay around $200 child support a week but that's the only thing he does. No overnights- no medical bills- nothing.

We have a "judgment of paternity" through the court and it states that the parents shall alternate claiming the child as a dependent, this being his first year to claim, being an "even" numbered tax year and that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332.

So I have some questions:

1. Can he claim the baby as a dependent if he has literally 0 overnights and doesn't provide more than half of costs?

2. What happens if I don't send him a form 8332 and claim the baby as my dependent?

xmasbaby0

Level 15

Are you the custodial parent? Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody? Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit. The non-custodial parent gets the child tax credit for children under the age of 18.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

If you are a non-married couple who live together then only one of you can claim the child(ren) and the one not claiming the child does not enter anything at all on their tax return about the child.

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**

needtaxhelp21Author

Level 2

Are you the custodial parent? ________ Yes

Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody? ________We don't have a divorce decree, we have a court order headed "Judgement of Paternity" which states that the noncustodial can claim in even numbered years but the court order didn't factor in the fact that the noncustodial has never even met the baby nor provided any overnights. The court order also states that the custodial parent (myself) has sole physical and legal custody.

Did one of you sign a Form 8332?_________ No, the court did not order an attachment of Form 8332 to the "Judgement of Paternity" papers, nor have either one of us sign one. The court papers we received do state that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332. Which I have not done yet.

Opus 17

Level 15

@needtaxhelp21 wrote:

Did one of you sign a Form 8332?_________ No, the court did not order an attachment of Form 8332 to the "Judgement of Paternity" papers, nor have either one of us sign one. The court papers we received do state that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332. Which I have not done yet.

Also note that if you do sign the waiver, you should still enter the child as a dependent in Turbotax, but indicate "yes, I will give the other parent a signed form 8332". Since the child lived in your home, you may qualify for earned income credit and head of household status even if you waive the child tax credit. EIC and HOH can't be waived, shared or transferred, even by court order, they always stay with the custodial parent.

Form 8332 is here. If you release the dependent, the other parent will be required to send the original signed form 8332 to the IRS within 3 days of e-filing. The other parent must indicate in Turbotax that the child did not live with them more than half the year, and they are only claiming the child because of form 8332. The other parent can claim the child tax credit but can't claim EIC or HOH unless they lie and say the child lived with them (if they do this, the IRS will investigate.)

Here is the form,

https://www.irs.gov/forms-pubs/about-form-8332

If you refuse to provide the form to the other parent, they can go back to the court and ask the court to take action against you. Some actions the court could require include making you sign the form in court (or be tossed in jail for contempt), or reduce the child support payment, or modify the custody order. Courts have a very wide latitude when it comes to enforcing their own orders. You should not refuse to sign the form unless you have a good attorney.

Opus 17

Level 15

The only parent with the automatic right to claim a newborn as a dependent is the parent where the child physically lived (regardless of court orders) more than half the nights of the year since it was born. This parent should select that the child lived with them "all year" in Turbotax to avoid confusion, this will create a correct tax return.

The parent where the child physically lived less than half the nights of the year has no right to claim the child as a dependent unless the custodial parent gives the non-custodial parent a signed form 8332 dependent release.

The IRS does not involve itself in custody disputes, and will award the dependent to you solely based on physical custody, if you don't sign the form. However, if you don't sign the release form, the other parent can go back to the family court and ask that you be held accountable. I do not advise ignoring a court order unless your attorney advises you to do so.