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lugosummers18
New Member

Can i still receive the child tax credit if my daughters dad has the option to claim her odd years? she lives with me full time

If my daughter lives with me full time but the court said her dad can claim her, can i still get the child tax credit advance payment
2 Replies
Critter-3
Level 15

Can i still receive the child tax credit if my daughters dad has the option to claim her odd years? she lives with me full time

No ... if the court says he is allowed to claim the dependency exemption then the CTC goes with it ... but if you are the custodial parent you get to keep the Day care credit, EITC and the HOH filing status ... make sure you both understand the rules and you give him the required form 8332 since the court order is not enough for the IRS.  

 

 

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.

The custodial parent may claim everything child related  UNLESS they waive the dependency exemption to the non custodial parent via a form 8332.... in that case the child may be used on 2 separate returns but only in the following way :

                                                                                         

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) on page 32:
https://www.irs.gov/pub/irs-pdf/p17.pdf

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
Level 15

Can i still receive the child tax credit if my daughters dad has the option to claim her odd years? she lives with me full time

The parent who claims the child as a dependent on their 2021 tax return is the parent who will get the enhanced child tax credit.  If that is not you, but you take the advance credit payment, you will have to pay it back.  

 

If you are planning to give your ex a form 8332 to allow them to claim the child in 2021 (per court order or agreement) then you should opt out (unenroll) from the advance payments.

https://www.irs.gov/credits-deductions/advance-child-tax-credit-payments-in-2021

 

Separately, if the child lives in your home more than half the year, you will still be entitled to claim head of household status, the dependent care credit, and EIC (if you are eligible) — those three tax benefits can't be waived or transferred to the non-custodial parent, even if you release the dependent to them on form 8332. 

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*

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