Guardianship

[Papajoehoward52]

My unmarried daughter and her ten year old son lived with me (for free). She recently just left to go live with her boyfriend, leaving her son with me. I have just been appointed his legal guardian by the court. Can I claim him as a dependent, even though she has been ordered to pay me child support?

[Opus 17]

Possibly.  All the rules are in publication 501.

https://www.irs.gov/forms-pubs/about-publication-501

Because you are a grandparent, the guardianship appointment makes no difference.

The first issue will be, where did the child live more than half the nights of the year?  (With which parent or other person did they live with.)  That means 183 or more nights, they do not have to be consecutive.

If more than one person meets that standard (such as, because your daughter lived with you in the same home as the grandchild for 183 or more nights, before moving out) then you go to the tiebreaking rules.  Unfortunately, the first tiebreaker is that dependent status goes to the parent, if the parent qualifies.  So if your daughter shared your home with her child for 183 or more nights, then even though you both qualify, your daughter gets to claim the child this year if she wants to.

Assuming the situation remains the same next year, she will not have a claim next year.

Also, if your grandchild did not live in the same home as your daughter for 183 or more nights, then your daughter does not qualify, but you may still qualify. .

[Papajoehoward52]

Thank you. There is no question about him living with me for more than half the year. She left in April. My question was more about if I can claim to be supporting him since she has been court ordered to pay me $220 wk in child support, retroactive to April (hasn’t paid anything yet).

[Opus 17]

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@Papajoehoward52 wrote:

Thank you. There is no question about him living with me for more than half the year. She left in April. My question was more about if I can claim to be supporting him since she has been court ordered to pay me $220 wk in child support, retroactive to April (hasn’t paid anything yet).

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Please familiarize yourself with publication 501.  Payment of support is irrelevant for this type of dependent.  The deciding factor in most cases is where the child lived the most number of nights during the tax year, assuming they lived with a close relative.  (A completely unrelated dependent has different rules, but that is not the issue here.). Look at the rules for "qualifying child" dependent.