Yes you may claim your son as your dependent if all of the following conditions to one of the two IRS tests below have been met. The time your son is in custody would be termed "Temporary absence" away from the home (residency test) because he is probably expected to return. (See this Link - https://apps.irs.gov/app/IPAR/resources/help/tempabs.html)
A parent may claim their child if they meet either the qualifying child or qualifying relative test as outlined below:
These 5 tests (all of them), will qualify a child as a dependent:
- Relationship: They must be your child, adopted child, foster-child, brother or sister, or a descendant of one of these (grand or nephew).
- Residence: They had to live with you in the same residence for more than half the year. Being away at school is considered as living at home.
- Age: Must be under age 19 or under 24 and a full-time student for at least 5 months of the year. They can be any age if they are totally and permanently disabled.
- Support: child did not provide more than half of their own support during the year.
- Joint Support: The child cannot file a joint return for the year.
These 4 tests (all of them) will qualify a relative as a dependent:
- Not Qualifying Child: They are not your or another taxpayer’s “qualifying child”
- Gross Income: Dependent has to earn less than $4,050 in 2016.
- Total Support: You provide more than half of the total support for the year.
- Member of Household or Relationship: The person (a friend, girlfriend, non blood relative) must live with you all year as a member of your household or be one of the relatives that doesn’t have to live with you (mother, father, brother, sister, aunt, uncle, stepmother, stepfather, your child, stepchild, foster child, adopted child, etc) Note: this list is not all inclusive.
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