Custodial Parent Wondering If She Can Claim Dependent?

[needtaxhelp21]

I had the baby in 2021- the noncustodial parent has never even met the baby.  We didn't live together after the baby was born.  The noncustodial parent doesn't have any overnights or inquire about the baby.  He is ordered to pay around $200 child support a week but that's the only thing he does. No overnights- no medical bills- nothing.

We have a "judgment of paternity" through the court and it states that the parents shall alternate claiming the child as a dependent, this being his first year to claim, being an "even" numbered tax year and that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332.  

So I have some questions:

1. Can he claim the baby as a dependent if he has literally 0 overnights and doesn't provide more than half of costs?

2. What happens if I don't send him a form 8332 and claim the baby as my dependent?

[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 18.

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.

If you are a non-married couple who live together then only one of you can claim the child(ren) and the one not claiming the child does not enter anything at all on their tax return about the child. 

[Opus 17]

The only parent with the automatic right to claim a newborn as a dependent is the parent where the child physically lived (regardless of court orders) more than half the nights of the year since it was born.  This parent should select that the child lived with them "all year" in Turbotax to avoid confusion, this will create a correct tax return.

The parent where the child physically lived less than half the nights of the year has no right to claim the child as a dependent unless the custodial parent gives the non-custodial parent a signed form 8332 dependent release.

The IRS does not involve itself in custody disputes, and will award the dependent to you solely based on physical custody, if you don't sign the form.  However, if you don't sign the release form, the other parent can go back to the family court and ask that you be held accountable.  I do not advise ignoring a court order unless your attorney advises you to do so. 

[needtaxhelp21]

Are you the custodial parent? ________ Yes

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? ________We don't have a divorce decree, we have a court order headed "Judgement of Paternity" which states that the noncustodial can claim in even numbered years but the court order didn't factor in the fact that the noncustodial has never even met the baby nor provided any overnights.  The court order also states that the custodial parent (myself) has sole physical and legal custody.

Did one of you sign a Form 8332?_________ No, the court did not order an attachment of Form 8332 to the "Judgement of Paternity" papers, nor have either one of us sign one. The court papers we received do state that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332.  Which I have not done yet.

[Opus 17]

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@needtaxhelp21 wrote:

Did one of you sign a Form 8332?_________ No, the court did not order an attachment of Form 8332 to the "Judgement of Paternity" papers, nor have either one of us sign one. The court papers we received do state that the custodial parent (myself) is ordered to timely sign and forward to the noncustodial parent an IRS form 8332.  Which I have not done yet.

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Also note that if you do sign the waiver, you should still enter the child as a dependent in Turbotax, but indicate "yes, I will give the other parent a signed form 8332".  Since the child lived in your home, you may qualify for earned income credit and head of household status even if you waive the child tax credit.  EIC and HOH can't be waived, shared or transferred, even by court order, they always stay with the custodial parent.

Form 8332 is here.  If you release the dependent, the other parent will be required to send the original signed form 8332 to the IRS within 3 days of e-filing.  The other parent must indicate in Turbotax that the child did not live with them more than half the year, and they are only claiming the child because of form 8332.  The other parent can claim the child tax credit but can't claim EIC or HOH unless they lie and say the child lived with them (if they do this, the IRS will investigate.)

Here is the form,

https://www.irs.gov/forms-pubs/about-form-8332

If you refuse to provide the form to the other parent, they can go back to the court and ask the court to take action against you.  Some actions the court could require include making you sign the form in court (or be tossed in jail for contempt), or reduce the child support payment, or modify the custody order.  Courts have a very wide latitude when it comes to enforcing their own orders.  You should not refuse to sign the form unless you have a good attorney. 

[needtaxhelp21]

I am not sure the other parent even knows what a Form 8332 is.  I am not refusing it but I don't think it's my job to tell him what he needs in order to claim the baby.  He hasn't contacted me at all since the before the baby was born so I don't even know if he's even thinking about claiming her. 

Thank you for all your help!!

[Opus 17]

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@needtaxhelp21 wrote:

I am not sure the other parent even knows what a Form 8332 is.  I am not refusing it but I don't think it's my job to tell him what he needs in order to claim the baby.  He hasn't contacted me at all since the before the baby was born so I don't even know if he's even thinking about claiming her. 

Thank you for all your help!!

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OK, last comment. 

Just to note, if you claim the child as a dependent as if the child lived with you all year, and you e-file, and then the other parent asks for the form, you would have to file an amended tax return to change the child's designation and pay back a significant part of your tax refund.

Also, if the other parent claims the child as a full dependent, as if the child lived with them, several things will happen.  Firstly, whichever parent tries to e-file second will be blocked and will have to file by mail.  Secondly, the IRS will launch an investigation, this usually take 9-12 months.  Whichever parent has to repay their tax credits will, by then, owe interest and penalties in addition to the tax repayment.  Then third, if the IRS issues an adverse ruling against the other parent because they don't have the form, which then causes the other parent to complain to the family court, I don't know if the court will accept "I waited to be asked" as an excuse for why the other parent suddenly owes interest and penalties to the IRS.  Just because they don't ask doesn't mean you shouldn't do it.  

In my opinion, if the order says you will give the form, you should give the form.  Keep a photocopy or photo as proof.   If the other parent doesn't know what to do with it, that's their problem, but if you don't give the form at all, that could end up being your problem.  Again, take advice from your attorney. 

[needtaxhelp21]

I am sending the non-custodial form 8332 but now I have another question.

When going through my dependents on turbo tax I come across the screen that says:

Do you have a written or verbal agreement with (edited Childs name out) other parent about who can claim (edited Childs name out)?

Yes

No

Is (edited Childs name out)'s other parent claiming (edited Childs name out) per your legal agreement?

Yes

No

I am on the chat with a turbo tax expert, he is sharing my screen and he is telling me to click "no" in the bolded question above... 

I don't feel like this is right as wouldn't the noncustodial parent, having form 8332, be entitled to claim the child? Do I click yes or no?

[Opus 17]

@needtaxhelp21 

In your situation, the answer to both questions is yes.  

[needtaxhelp21]

Could I petition this decision in court and have it changed to he cant claim the child ever?

I only say this because he has never met the child and wants nothing to do with her except for the tax breaks which benefit him.