Number of nights spent with each parent

[jaybrownbike]

Due to my work schedule, my son only gets to spend 8 nights a month with me. I do, however, look after him daily, pay for half of his pre-school and other needs, and is on my health insurance. Can I claim him as a dependent in any way or reap any other benefits that other taxpayers get?

[VincentL12345]

Requirements for the 2021 Child Tax Credit:

1) Age test 

2) Relationship test

3) Support test 

4) Dependent test - You must claim the child as a dependent on your tax return. Bear in mind that in order for you to claim a child as a dependent, he or she must:

• be your child (or adoptive or foster child), sibling, niece, nephew or grandchild;
• be under age 19, or under age 24 and a full-time student for at least five months of the year; or be permanently disabled, regardless of age;
• have lived with you for more than half the year; and
• have provided no more than half his or her own support for the year.

5) Citizenship test

6) Residence test - The child must have lived with you for more than half of the tax year for which you claim the credit. There are important exceptions, however:

• A child who was born (or died) during the tax year is considered to have lived with you for the entire year.
• Temporary absences by you or the child for special circumstances, such as school, vacation, business, medical care, military services or detention in a juvenile facility, are counted as time the child lived with you.
• There are also some exceptions to the residency test for children of divorced or separated parents.

7) Family income test

Also, dependent rules require that the dependent must have lived with you for more than half of the year.  Temporary absences impact the residency rule and count as time lived with you. These include:

• School
• Vacation
• Business
• Medical care
• Military services
• Detention in a juvenile facility

[NateTheGrEAt]

To add to VincentL's great post, I would note that whether you can claim the child as a dependent is up to you and the child's other parent. 

With the child only staying with you for 8 nights a month, you do not qualify as the custodial parent by the IRS definition. However, you might have or make an agreement with the other parent to allow you to claim the child as a dependent even when you're not the custodial parent. That's totally up to whatever you negotiated or can agree upon - often the question of claiming the child will be addressed in a divorce or custody/parenting agreement. 

[macuser_22]

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@jaybrownbike wrote:

Due to my work schedule, my son only gets to spend 8 nights a month with me. I do, however, look after him daily, pay for half of his pre-school and other needs, and is on my health insurance. Can I claim him as a dependent in any way or reap any other benefits that other taxpayers get?

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Sorry but support is not counted for claiming a Qualifying Child dependent.  

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). And yes they are that picky.  (There are exceptions if a parent works nights that is explained in the Pub.)

See Custodial parent and noncustodial parent in Pub 501

https://www.irs.gov/publications/p501#en_US_2020_publink1000220904

[NateTheGrEAt]

jaybrownbike,

I'm glad you found my answer helpful! I did want to add a few additional details you'll need to know if you are going this route.

1. If you are not the custodial parent and are claiming the child, you need to have the other parent sign Form 8332 and give it to you. You will need this when filing your tax return as proof that you are authorized to claim the child as a dependent that year.

2. The Form 8332 only allows you to claim the child as a dependent and get the Child Tax Credit. Since you are not the custodial parent you do not qualify for the Child and Dependent Care Credit and the child isn't a qualifying child for EIC for you. Those benefits always remain with the custodial parent. 

[jaybrownbike]

Thank you for your clarification, Nate. All great information to consider. It's too bad the IRS only acknowledges where the child sleeps and nothing else. Have a good day and thanks again. 

Jay

[Prayerfortaxpayer]

My son stayed 9+months of 2023 with me and his mom at an apartment I solely paid for. At the end of the year he spent nights split between his grandparents house with his mom(and myself) and our new place while being renovated. His mom is now claiming that since he/she/they spent a few weeks at her parents house with him when I was at the other house that she is the custodial parent. My AGI is higher and he spent more than a majority of the year under my(our) care. Will the IRS let me claim him since he stayed with me for over 183/184 nights?? I can’t believe that he spent over 330 nights with me and now his mom says she was with him 350 nights so she’s the custodial parent?!?! I feel like she’s just saying/claiming this cause my AGI is higher and this is the only way for her to get him on her refund. I’m about to amend my taxes claiming him but want to make sure I am in the right and won’t be fined or have to pay anything back. I lost over 6k not claiming him/HoH on my original return.

[NCperson · Accepted solution]

You never stated it, but I am assuming you two are not married but share a biological child. 

The IRS has tie breaker rules when two parents can not agree on who is to claim the child

• Tiebreaker #1: parent who the child lived with the longest during the tax year
• Tiebreaker #2: parent who earned the most money during the tax year

There is an argument to be made that your son was only temporarily away from home (visiting grandparents) so the fact that he was with Mom on those nights doesn't change the math.  If you are saying you all lived in an apartment for 9 months and then you all lived in a house that was being renovated and Mom / Son spent a few nights at Grandparents during renovation, then child spent 365 days with both of you and Tiebreaker #2 is the imperative.  

What I am stating is that if you all lived in a home for the entire year and let's say Mom took Child on a vacation without you doesn't mean that Child spent more nights with Mom.  Child was only temporarily away from home and still spent 365 days with both of you. 

Who paid more than 50% of the household expenses?  if you did, she can't file HOH.  

It may be worth sitting down and comparing the tax returns both ways (I am assuming that with that larger  income, you pay more than 50% of the household costs)

1) she files SINGLE and claims the child and you file SINGLE.

2) you file HOH and claim the child and she files SINGLE

I suspect you will find that 2) is the better outcome - by far.  Better to agree who is to claim the child than fighting and letting the IRS figure this out. 

To prove it to HER, here is the IRS reference to what a 'temporary absence' is: 

Temporary absences. You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home due to special circumstances such as illness, education, business, vacation, military service, or detention in a juvenile facility. It must be reasonable to assume the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.

page 9 middle of the page

https://www.irs.gov/pub/irs-pdf/p501.pdf