Can a Judge still change divorce agreement to take Child tax credit from parent who provides 100% care for child 365 over nights a year. For what ever reason?

[SweetieJean]

You need to ask your lawyer that question.

[Critter]

Ok ... what a court can do is require the custodial parent to release the dependent exemption to the non custodial parent and that will also include the Child Tax Credit.  What the courts cannot do is release the rest of the child benefits ... that would be against the IRS regulations.  Make sure the courts modify the decree according to the IRS regulations ... and only sign an 8332 for each tax year...don't give a blanket form for multiple tax years since that can cause complications later.  If you don't like the changes you have the right to fight them ... ask your attorney.

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). That can usually only occur if both parents lived with the child at the same time.   And yes they are that picky.

See Custodial parent and noncustodial parent under the residency test in Pub 17
https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170891)

The custodial parent has the right to claim all parts of the child benefits unless they choose or are required to complete a form 8332 to pass some of them onto the non custodial parent ... in that case this is how the benefits are split ...

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart).
https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170897

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

[Opus 17]

A state court judge cannot order the IRS to do anything. However, a state court judge could order the custodial parent to sign form 8332 releasing the child tax credit and the dependent exemption to the noncustodial parent as part of a child support agreement or divorce settlement.  (The custodial parent always keeps the right to claim the child as a qualifying person for head of household status and the earned income credit. That cannot be transferred under any circumstances.)

 The dependent exemption is often awarded to the noncustodial parent in alternating years in divorce cases. Whether this is acceptable to you or not is something you need to discuss with your attorney. 

 Note that if you refuse to sign the form, the other parent cannot claim anything with the IRS. The IRS does not respect state court orders, only the signed form. However, if you do not sign the form, your ex can take you back to court and file a contempt charge for violating the court order.