I have 2 children with a woman i never married. There is a custody agreement which she has "custody" and there's no regard to who can claim dependents on their taxes.

[cschroder67]

 My son lives with me 100% of the time, except for visits to her.  There is nothing in the custody agreement regarding dependent filing situations. I figured she could file and claim him because she has legal custody.  In such a situation can I claim head of household and use my son as the qualifying person?  If i can is there anything that i must document or send to the irs? 

[cschroder67]

additionally, should i do amended returns for the past few years in which i claimed single?

[cschroder67]

will there be any consequences to her if I do use him as a qualifying person for head of household?

[cschroder67]

also should i do amended returns for the past few years, i have always claimed single

[Carl]

If you qualify to file HEad of Household, then that's what you should be claiming. It's a higher standard deduction. You can only amend a tax return for the current tax year and three years back. Note that an amended return can not be e-filed. The IRS says so. You have to print, sign and mail an amended return to the IRS. Mail each year in a physically separate envelope too. Amended returns take anywhere from 4-8 weeks to process, and sometimes longer.
Read the information at <a rel="nofollow" target="_blank" href="https://turbotax.intuit.com/tax-tips/family/guide-to-filing-taxes-as-head-of-household/L4Nx6DYu9">ht...> to see if you qualify to file HOH not only for this year, but for past years up to 3 years back.

[macuser_22 · Accepted solution]

Legal custody and tax custody are two totally different things.   Only the parent that the child physically lived with more than half the year can claim the child or release the child's exemption to the other parent with a signed 8332 form if they desire to do so or are compelled to by a court order.

Per the IRS rules:
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.

[cschroder67]

so if i claim him as my qualifying person for head of household, i must give her a form 8332, and she will lose the earned income credit usually associated with claiming him a her dependent?

[macuser_22]

She cannot claim that anyway using the child for EIC if the child does not live with her.  The tax law forbids that.  To claim a dependent for EIC requires that you certify under penalty of perjury that the child lived with you for more than half the year.   (Not to say that many people don't violate the law and do not get caught, but like speeding, if you get caught the penalty can be high. And the IRS does conduct random audits to catch cheaters)

No, you are not required to give a 8332 unless you have an agreement or court order, but you can if you want to release the exemption - that is up to you.

Regardless if you claim the EIC and HOH or not, the parent that did not physically live with the child cannot (legally) claim those credits.

To enter into TurboTax.
If you are the custodial parent where the child physically lived for more than half the year (183 nights) then:

When you enter the dependent, you say that he/she is "Your child" (not you and your spouse if remarried),
he/she lived with you the whole year,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement,
and "yes", the other parent is claiming this year.  

That will give you the EIC,  Child Care Credit and Head of Household filing status if you otherwise qualify.

The child would be listed as "non-dependent EIC & Dependent Care only".

The other (non-custodial) parent can claim the child’s exemption and child tax credit only and needs a signed 8332 form to do so.
===

If you are the non-custodial parent where the child did not physically live for more than half the year (183 nights) then:

When you enter the dependent, you say that he is "Your child" (not you and new spouse if remarried),
He/she lived with you zero months,
“no” the child did not pay more than half of his/her own support,
"yes", you have a custody agreement, and
"yes” I am claiming this year.

That will give you the child's exemption, and child tax credit.  
 
The EIC, and Child Care Credits can only be claimed by the parent where the child actually lived.     

[cschroder67]

thank you very much, that is the first answer that i have gotten that is "dumbed down" enough for me to understand it.  The difference is only 1500.00 for me, HOH vs single, and its not worth the drama it would cause.  From what you have said the IRS may go back on her if i do amended returns and get that HOH status, or claim HOH this time, while she claims him a her dependent(past and present).  Probably the best 1500 I've ever spent/passed on.  lol.

[macuser_22]

If two taxpayers claim the same this for the same child, receiving an IRS letter asking for supporting details is guaranteed - the IRS is slow, so the letters are usually a year after the tax returns are filed.

[Carl]

This IRS rules apply, regardless of what any custody agreement you may or may not have may say. Use the IRS tool at https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent to see if you are the one legally entitled to claim them.

Basically, things dealing with divorce, separation and custody are handled by a judge below that of a federal judge. So regardless of what that lower judge may say, they can not over ride or negate the federal tax rules on this.