My nephew, by marriage, lived with me for 8 months. Mom signed/ notarized a temporary custody. She claimed him as a dependent. Is that legal and can I still claim him as a dependent?

[pesanchez86]

I financially supported him for those 8 months but mom claims that she is the custodial parent and has the right to claim him.

[Carl]

For federal tax purposes only, the custodial parent is determined by the IRS rules only. Per their rules, the custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent. You are neither parent. If the child live with the mother in 2017 for more nights than lived with the father, then the mother is the custodial parent and can claim the child as her dependent.

[Opus 17]

@Carl , aunts and uncles are in the same tax position as "parents."  A child who lives with an aunt or uncle for 183 nights and a parent for 182 nights will generally be a qualifying child of the aunt or uncle, unless the parent tries to claim it was a temporary absence.

[Carl]

Thanks Opus. I'd like to add that to my notes. What I quoted above is from IRS Pub 504. I searched that document with search terms aunt and uncle, as well as relative and can't find it. Can you help? (This year, I've started noting where my info comes from in my notes.)

[pesanchez86 · Accepted solution]

I don’t want to mess with my ex sister in law. She had wanted to give up custody of her son. She lives in the same town and while my nephews parents were battling about who should have full custody he was safe with me. She then decided to take him back late November. But I can prove he lived with me for those months. Is it worth then trying to claim? It sounds like I have no right to claim  

[Opus 17]

You may have a valid claim based on the circumstances, the issue will be proving it to the IRS.  You need to prove that your nephew lived with you more than half the year.  In addition to whatever personal proof you have, the IRS also likes letters sent to you about the child by reliable third parties, like letters from doctors or the school district about the child sent to you.

Then, if you can prove that the child lived with you more than half the year, you also have to prove that at the time, it was not a temporary absence from the mother's home.  This will be harder to do, and will depend on any letters and statements from the mother, the involvement of other family members and whose story they would support if asked by the IRS, and the judgment of the auditor.

[pesanchez86]

Thank you so much. I can provide proof and the school would support my case and provide me with documentation that he lived with me for more than half the year. You have been so helpful.

[Opus 17]

Why do you want to screw mess with your sister or sister-in-law?

Your nephew can be your dependent if he lived in your home more than half the nights of the year.  It is not required that you prove you provided support, just where the child lived.

However, the child is a dependent of his mother if he lived with his mother more than half the nights of the year, including "temporary absences."  A temporary absence is just what it says, presuming the reason for the child living away is temporary and it is reasonable to expect that the child will return home after the absence.  The child is considered to live where they would have lived if not for the reason for the temporary absence.  This concept usually applies to sleepovers, summers with grandparents, and college.  But it may apply here.

If you claim your nephew and are blocked from e-filing, you can print your return and mail it in.  The IRS will investigate. Your argument would be that the child lived in your home more than half the nights of the year.  The mother's argument would be that the child lived in her home more than half the nights of the year because the time in your home should be considered a "temporary absence."  Can you prove otherwise?

This situation seems like a judgement call, you would be relying on the auditor to see it your way.

[Opus 17]

The rules are here. <a rel="nofollow" target="_blank" href="https://www.irs.gov/forms-pubs/about-publication-501">https://www.irs.gov/forms-pubs/about-publicati...>

[Carl]

Got it. Pub 501, page 12, Table 5. Thanks.
Also, your link is to the information about pub 501. The actual pub 501 is at <a rel="nofollow" target="_blank" href="https://www.irs.gov/pub/irs-pdf/p501.pdf">https://www.irs.gov/pub/irs-pdf/p501.pdf</a>

[Opus 17]

I use the info link so people can choose between the html version or the pdf version.