May I claim a grandchild whose parents do not support?

[johnniebc1]

I have had my grandchild for last year while their parents moved to another state and have not paid any support. But they maybe planning on claiming child to get a refund. But I have been supporting her and raising her without legal custody. They do not speak to us.

[Howard1948 · Accepted solution]

To be a dependent, a minor child must have lived with the taxpayer more than 1/2 the year.  This makes your grandchild your dependent, not the parents' dependent.

If you file first, all will be good.

If they file first and claim her, you should claim her on your return and file by mail (do not efile).  The IRS will then sort it out as to who is entitled to the dependent.  You should win.

As the child is your grandchild, you do not need any "legal custody" for any of this.

[johnniebc1]

She has lived with me over 1 year. Her parents moved to another state. Never paid any support. But I have heard they plan to claim her and do it right away so they can file first and get refund. I have all school records, I pay for a private school, and all her extra studies, sports and all living exspense. They have not contributed any monies toward her support in any way. I will make sure to file and mail it in, I don't mind waiting, but they feel just because they are her legal parents they have the right, as they wont give me legal custody but dont want her to live with them.They are using the advantages of earned income credit, child tax credit etc, things our income level does not allow, but I could use the deduction but do not want to get into trouble with IRS.

[Howard1948]

From your description, you're not the one that's going to be in trouble.  But mom and dad are in for a very unpleasant experience.  You might advise them of this before they file and see if you can head off the problem before it surfaces.

[miltf]

I am in pretty much the same situation being the grandparent of a child whom we have been caring for most of the year.  Is there some way to claim him as a dependent before actually filing my tax return?  If I need to wait until receiving all my 1099's etc, I generally can't file till sometime in March.  His mother, who has not cared for him at all, will likely file earlier and claim him as a dependent.  Can I file an "estimated" return earlier and replace it with a correct amended return later?
Also, the same thing happened last year (2016).  I didn't claim him since his mother had already claimed him by the time that I filed.  Can I still file an amended return by mail for 2016, claiming my grandson as a dependent?

[miltf]

I am in pretty much the same situation being the grandparent of a child whom we have been caring for most of the year.  Is there some way to claim him as a dependent before actually filing my tax return?  If I need to wait until receiving all my 1099's etc, I generally can't file till sometime in March.  His mother, who has not cared for him at all, will likely file earlier and claim him as a dependent.  Can I file an "estimated" return earlier and replace it with a correct amended return later?
Also, the same thing happened last year (2016).  I didn't claim him since his mother had already claimed him by the time that I filed.  Can I still file an amended return by mail for 2016, claiming my grandson as a dependent?

[macuser_22]

@miltf - Yes you can amend 2016 if you were entitled to claim and the parent was not.

There is no way to stop the parent from claiming and if they claim first with an e-filed return then yours will reject and you will have to mail file claiming what you are entitled to.

Best that you follow Howard's advice and let the parent know that this can end up costing them big time.
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If a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the child's SSN has already been used (either intentionally or in error such as a mistyped SSN).

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

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.

Do not ignore the letters or you will loose.

[miltf]

According to tie-breaker rules posted at <a rel="nofollow" target="_blank" href="https://www.thebalance.com/claiming-dependents-3193028">https://www.thebalance.com/claiming-dependen...>,
the parent has first option to declare the child as a dependent.  It doesn't say anything about actually supporting the child or living with him.  Is that correct information?
The rules show are:
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The taxpayer most eligible to claim a child as a dependent under the qualifying child criteria is:

    A parent
    The parent with whom the child lived for the longest time during the year. Chances are the child will spend at least one day more with one parent than the other parent because there are usually 365 days in a year.
    The parent with the highest adjusted gross income if the child spent exactly an equal amount of time with each of them.
    If neither taxpayer is the child's parent, the taxpayer with the highest adjusted gross income gets to claim the child.

[macuser_22]

@miltf -

Tie breaking rules only apply when two or more tax payers meet the requirements to claim a Qualifying Child dependent.  Support is *not* a requirement, but the child *living* with the taxpayer more than half the year is a requirement.     If both parent and grandparent and child all lived together for more than half the year then the tie breaking rules would prevail,  but the question is this thread clearly said that the child lived with the grandparent and the parents lived in another state.   The parents in this situation have no claim on the child as a dependent and could not claim the child even if the grandparent choose not to since they do not meed the requirements.

[miltf]

ok, then I'm good.  I can definitely claim the child.  Thanks for the very speedy reply.

[macuser_22]

These are the tests for a qualifying child.

---Tests To Be a Qualifying Child---
   (Must pass ALL of these tests)

NOTE: If a child passes all of these tests he must say “yes” on his/her own tax return (if he/she files one) that another taxpayer CAN claim him/her as a dependent even if they DO NOT claim him/her)

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother,stepsister, or a descendant of any of them.

2. The child must be (a) under age 19 at the end of 2016, (b) under age 24 at the end of 2016 and a full-time student* for any part of 5 months of 2016, or (c) any age if permanently and totally disabled and must be younger than you (or your spouse if filing jointly).
 
3. The child must have lived with you for more than half of the year (There are exceptions for temporary absences such as school, illness, business, vacation, military service).

4. The child must not have provided more than half of his or her own support for the year.

5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child.

6. The child is not filing a joint return.

7. The child must be a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico

 *A full-time student is a student who is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any 5 calendar months of the year.

See IRS Publication 17 for more information.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170876">https://www.irs.gov/pub...>

[torismom0814]

If you have physical custody you are entitled to claim her. They will ask n if she was with you all year and also if you or someone else supported her since you did you are entitled to that tax benefit and if the parents attempt to claim her it is fraud. You have all your proof she is with you.

[pelorus357]

Good for you. When you tell the parents that she is legally your dependent and if they claim her they will have to pay back all the 2019 credits PLUS interest PLUS they will be barred from claiming her for two more years EVEN if she goes to live with them that might help.

[Jeangma]

What if the childen lived all year at grandparents house and mother lived there to but did not support them

[Jeangma]

What if the mother already let someone. claim the grandchildren and they are not related to the children what so ever