Which state is my child a legal resident of? Military stationed out of state, and my wife and I have different residency.

[DT1234]

I am active duty military stationed out of state.

My wife is not in the military, and she is a resident of a different state than me.

What state is my child a legal resident of (mine or my wife's), or do we get to decide?

[Anonymous_]

@Mike9241 may be able to answer your question. Stay tuned.

[TomD8]

Are you asking about residency for income tax purposes, or for some other purpose - such as residency for in-state tuition?

[DT1234]

Asking about residency for tax purposes.

[Mike9241]

with whom does the child reside? residency, actually domicile, is the child's permanent home. 

[DT1234]

My kids lives with both of us (me and my wife).

[TomD8]

Normally the domicile of a minor child follows that of the parents - or of the custodial parent, if the parents are separated.

The VBTA law of 2018 - which gives the spouses of active-duty military the option of filing taxes under either their own domicile state or that of their servicemember spouse - does not mention children, but I suspect the minor child of the servicemember would have the same option as the civilian spouse, if the child had to file their own tax return.  (But I haven't been able to find an internet reference that supports that opinion.)  

[Critter-3]

I would presume the child is a resident of the state where they actually reside and not the military residency status of their parents which can be legally different due to the Military options available. 

So the father could have SLR as OH and the mother still uses an old state because of MRSSA say FL  but they all live in PA then the child is a resident of PA for income tax purposes.   They don't get to choose one of the parent's options because they are not the military member or the spouse. 

[TomD8]

I don't believe @Critter-3 's answer applies to minor children.

I believe the general legal principle is that the domicile of a minor child is the domicile of the parents, or of the custodial parent if the parents are separated.  See this:

https://domicile.uslegal.com/domicile-of-particular-persons/children/#:~:text=One%20acquires%20a%20d....

Some states, e.g. Georgia, address the issue directly:

https://law.justia.com/codes/georgia/2020/title-19/chapter-2/section-19-2-4/

From the Hawaii Tax Code:

 "Domicile by operation of law" is assigned or attributed to an individual independently of the individual's residence or intention. In the usual case, domicile by operation of law is applied to those individuals, who, because of certain disabilities, are unable to acquire a domicile by choice. These would include such individuals as minor children and incompetents.

https://www.law.cornell.edu/regulations/hawaii/Haw-Code-R-SS-18-235-1.06

Also the Vermont Tax Bureau:

"The domicile of the custodial parent is the domicile of an unmarried minor, and
cannot be changed by the minor's own act."

I suspect a further Google search would turn up other examples.