I am unable to claim my son this year due to a court order, but shouldn't I still be head of household since he lived me with me and I paid all expenses?

[DoninGA]

Are you the custodial parent and if so have you given the noncustodial parent a Form 8332 Releasing your claim for the child being your dependent in 2022?

[Critter-3]

Depends ... if both parents live together with the child for the same amount of time  during the tax year then both are  the custodial parent ... in that case  only ONE of the parents can claim the child ( for all child related benefits)  and the other doesn't mention the child at all on their return.

However if the parents do NOT live together all year ... 

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the legal custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent  under the residency test in Pub 17

https://www.irs.gov/publications/p17#en_US_2017_publink1000170899
 
Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household 
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

[Opus 17]

If you had custody more than half the year, you should indicate that in Turbotax when you edit your child's information.  (Make sure to pick 7 months or longer, since the program interprets 6 months to be exactly half the year, and exactly half the year is not more than half the year.)  Then indicate that you will not claim the child tax credit due to a court or custody order.  The program should still qualify the child for head of household status.  Also, you will need to give the other parent a signed copt of form 8332 releasing the dependent to them.

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

If you had physical custody less than half the nights of the year, you can't use the child to qualify for HOH regardless of the court order. 

[Hal_Al]

Q. Shouldn't I still be head of household since he lived me with me and I paid all expenses?

A. Simple answer: yes.

 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. A court order can NOT give the noncustodial parent there benefits.  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

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