If my child’s father only paid 4/12 months of child support in 2018 and I have soul custody of the child, is he able to claim the child?

[nancy_r09]

The child has lived with me the whole year but the father still wants to claim him even though I said no and because he hasn’t paid child support for 8 months total in 2018. Is he able to claim him even if I say no?

[macuser_22 · Accepted solution]

Child support has nothing to do if a parent can claim a child or not in tax law.

 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 legal 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 so the child cannot be claimed by either parent)

The custodial parent CAN release the dependent to the non-custodial parent with a signed 8332 form and may be compelled to do so if directed to do so by a divorce decree or court order or be in contempt.  Lacking any such legal order, that is the custodial parents option to release of not.

[macuser_22]

There is also nothing that will prevent him from claiming the child anyway even he is not entitled to.  If he e-files first, your efile will reject because the child's SSN has already been used.  If that happens you can only print and mail, claiming what you are entitled to claim.   You should try to e-file first so his claim will reject.

If you both file and claim then:

The IRS will process both returns and pay any refunds.   Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed the child.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to claim the dependent, such as proof that the child physically lived with them more than half the year.   School records, child care records, household receipts, medical bills, etc., that show that the child lives with you should be retained.

The IRS will evaluate each taxpayers claim and award the dependent to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.   The parent that had physical custody usually always wins. The lack of a signed 8332 form submitted by the non-custodial parent is a almost a certain loss for the non-custodial parent.

Do not ignore the letters or you will loose.