I had my son living with me from jan.1 to Oct. 24 of 2016 .he is now living with his father .can i still claim him for the year of 2016

[LinaJ2018 · Accepted solution]

Yes, you may claim him for the tax year of 2016 if you meet the following requirements :  ( the fact that he is living with his father now in 2017 is irrelevant for filing 2016 tax return, but may have impact while filing your 2017 tax return) 

·         Relationship: Must be your child, adopted child, foster child, brother or sister, or a descendant of one of these.

·         Residence: You must have lived with him at the same residence for more than half the year.

·         Age: He must be under age 19 or under 24 and a full-time student for at least 5 months. They can be any age if they are totally and permanently disabled.

·         Support: He must not have provided more than half of their own support during the year.

·         Joint Support: He cannot file a joint return for the year.

If your son does not meet the above requirements, you will still have another chance to claim him if you meet these followings :

• Gross Income: He earns less than $4,050 in 2016.
• Total Support: You provide more than half of the total support for the year. - Support Test
• Relationship: Must be your child, adopted child, foster child, brother or sister, or a descendant of one of these
• He is not claimed by another taxpayer on their 2016 tax return.

[Hal_Al]

Yes, you can claim him because he lived with you for more than half the year. For tax year 2016, you are the "custodial parent" for tax purpose; regardless of who has legal custody.

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 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. 

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:

 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 exemption 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: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897