Can I file for my son, he lives with me but his father been filing for him

[pbrown-58]

His father was filing for him but my son doesn't live with him

[xmasbaby0]

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

IRS interview to help determine who can be claimed:

https://www.irs.gov/help/ita/who-can-i-claim-as-a-dependent

https://ttlc.intuit.com/questions/3113432-who-can-i-claim-as-my-dependent  

[GeorgeM777]

If the child lived with you, then you are the custodial parent and would be entitled to claim the child as a dependent on your tax return.  Generally, the child is the qualifying child of the custodial parent.  Whichever parent the child lived with for the longer part of the year is the custodial parent. Therefore, if you are the custodial parent for the child, you may have a right to claim the child tax credit for 2022 and any previous year during which you were the custodial parent.   

At this point, it may be a good idea to start collecting your records/documents to prove to the IRS that you are the custodial parent, assuming that is your position.  Moreover, if you claim the child on your tax return, and your return is rejected when you try to efile, such rejection could be based on the fact that the father has already filed and claimed the child as a dependent.  In these situations, if you want to claim the child as a dependent, even though the father has already claimed the child, you will have to paper file your return.  It's likely that the IRS will request information from you regarding your basis for claiming the child. Therefore, have your records/documents ready to prove your position.

Here is a link to an IRS webpage that discusses divorced and/or separated parents and claiming children as dependents.  You might find this information helpful.

IRS FAQs

@pbrown-58

[Hal_Al]

Q. Can I file for my son, he lives with me but his father been filing for him?

A. Yes. 

There is a way to split the tax benefits. 

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the dependency to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

The custodial  parent is the parent the child lived with for more than  182 nights  in 2022).