Can I claim my girlfriend's son if she has joint custody with his father? Court ordered them to alternate years but she didn't work this year and it is her turn to claim.

[feenzy218]

Do I have any right to claim him? We ended up having him more like 60-70% of the year and I provided all support for that time. Even though they are court ordered to have him 50/50 there were many times that he could not take him or refused to. Now he wants to claim him because she didn't work, because she is staying at home with our 1 year old daughter. 

[xmasbaby0]

If the child did not live with you the entire year, you cannot claim the child, since he is not related to you.

[Hal_Al · Accepted solution]

No.

You have no "right" to claim him. Support, alone does not determine who can claim a child. even if you had  been able to claim him as a dependent (see full rules below), you could not have  claimed him as a "qualifying child" for EIC or Child tax credit or Head of Household filing status, because you are not related.

As previously mentioned, an unrelated person must have lived with you all year. That rule cannot be met in a "joint custody" situation.

The best bet is to let the father claim the child and ask him to share the largess. Otherwise the child's tax benefits go to waste. 

DEPENDENT RULES

There are two types of dependents, "Qualifying Children"(QC) and standard ("Qualifying Relative" in IRS parlance even though they don't have to actually be related). There is no income limit for a QC but there is an age limit, a relationship test and a residence test. Only a QC qualifies a taxpayer for the Earned Income Credit and the Child Tax Credit.

A person can still be a Qualifying relative dependent, if not a Qualifying Child, if he meets the 6 tests for claiming a dependent:

1. Closely Related OR live with the taxpayer ALL year

2. His/her gross taxable income for the year must be less than $4,050 (2016-17)

3. The taxpayer must have provided more than 1/2 his support

In either case:

4. He must be a US citizen or resident of the US, Canada or Mexico

5. He must not file a joint return with his spouse or be claiming a dependent of his own

6. He must not be the qualifying child of another taxpayer

[Hal_Al]

Even though, you won't be claiming the child and the mother won't either; the father still can't claim the child without the mother's written consent on IRS form 8332.
Even though he isn't "allowed" to claim the child without that form, he'll probably get away with it, because there is no competing claim.

The mother should be aware of one other thing, if she goes back to work or you get married.  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: <a rel="nofollow" target="_blank" href="http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897">http://www.irs.gov/publi...> Scroll down to "Children of divorced or separated parents (or parents who live apart)"

*Despite the joint custody court documents, the father is the non custodial parent, for tax purposes, because the child lives with the mother more than 50% of the time. The IRS goes by physical custody, not 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. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. <a rel="nofollow" target="_blank" href="https://www.irs.gov/pub/irs-pdf/f8332.pdf">https://www.irs.gov/pub/irs-pdf/f8332.pdf</a>

[feenzy218]

I guess my only other question is that if the custodial parent (my girlfriend) could give her exemption up to me instead, similar to the 8332 form for the noncustodial parent. I'm sure the answer is no, but it seems like something that should be allowed. Morally I feel that I have every right to claim the child, but legally I cannot. We will most likely try to work something out with the father paying us a percentage of his return. Is that something we should get in writing? The 8332 isn't a contract binding the two parties to share the return. So he could file the return and not give us a share and we would completely lose out.

[Hal_Al]

You are correct, the answer is no. The only person she can give the exemption to is the other parent.
The only way to get something in writing is  to ask him. She actually has more leverage than is readily apparent.  The IRS will not enforce their court order to alternate years. The IRS goes by physical custody, not legal custody. If they both try to claim the kid, the IRS will side with her and not even look at the court order. His only remedy is to take her back to court for sanctions.

Another issue: last year when it was his turn to claim the child; did the mother still claim the EIC on her return? If not, she can file an amended return and claim it now. If the father improperly claimed EIC, the IRS will make him pay it back. This assumes the child lived with her more than half of last year too.