To file HOH, you must meet both of these criteria
1) you must be paying more than 50% of the expenses to run the household you are living in
2) you must have a 'qualifying child' - and the most critical requirement is that they live with you 183 or more days of the year.
Further, the paren that the child lives with for at least 183 of the year has the right to claim the child. You state the child is living with you ~100 days of the year. WHo is the child living with the other ~265 days of the year?
Lastly, any tax return that lists dependents must contain the valid social security number of the child - IRS rule.
Info on Head of Household
See IRS Pub 501 page 10 for qualifying person.
Who is a qualifying person for Head of Household
See FAQ on Head of Household
Are you married? Can a married person claim Head of Household
Q. Can I place a child on the return without security number who lives with me on the weekends?
A. No. You must have the SS# and you must have the permission of the child's custodial parent, to claim the child, as a dependent.
Q. Can I file head of household?
A. No. Your qualifying dependent, for HoH, must live with you for more than half the year.
The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The IRS goes by physical custody, not legal custody. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf
This may be helpful in your negotiations with the ex:
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.
, For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody.
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