Can I claim my nieces and nephews after someone else already did?

[user1274]

I had legal and physical custody of my nieces and nephews for more than half of the year. The agreement with their mother was that I would claim them, but then she went behind my back and claimed them herself. Am I able to claim them now? Also, in transitioning the children back to their mother they would spend a few nights a week with her until she was awarded custody back. However I still had them more overnights than she did, but it’s very close. I’m not sure how I would be able to prove I had them longer besides my custody paperwork.

[NCperson]

can your prove they stayed with you for at least 183 nights during 2020 and you provided over 50% of their financial support?  

if so, just claim them and file by mail.  The IRS will sort it out. 

how would she prove they spent more than 183 nights with her in 2020?

[Bsch4477]

Tax law says that it they lived with you more than half the nights in the year you can claim them. You will have to mail your return with an explanation that you had physical custody of the children more than half of the year. 

[Critter-3 · Accepted solution]

This is a tricky situation that could cause damage in the family so think about what you are doing before you do anything.   You may need to have a serious talk with the mother and educate her on the consequences of her actions.  

Now do you have the right to claim the kids ... yes.   

Could you paper file the return to assert the claim ... yes. 

Will you get the refund for the kids ... yes.   

However, the IRS will send out notices to both parties in a couple of years asking the person in the wrong to amend their return to un-claim the kids.  If neither owns up to the wrong doing then the IRS will send audit letters to both parties and then you will need to prove your right to claim the kids  so prepare now ... get out a calendar and start marking down which days the kids were with you and be prepared to defend your claim in 3 to 4 years from now.  The loser will be required to pay back all the money the kids got for them  + penalties + interest + the restriction to not claim the EIC for 10 years. 

[Bsch4477]

@NCperson  One correction. The poster does not have to provide more than half of their support. The children must not provide half of their own support for the poster to claim them. 

[user1274]

Thank you for your responses! What would happen if she amended her return and un-claimed them? Would the penalties still stand?