My kids lived with me for 8 months this year but their father said he wanted to claim them,so who can claim them and how can I stop him from claiming them if I get to?

[bwa · Accepted solution]

If you are the custodial parent (the kids lived with you more than 1/2 of the year) then you would be entitled to claim them as exemptions.

how can I stop him from claiming them

You can't.  If he claims them and files first your return will reject and you will need to file on paper.  The IRS will process it and then inquire of both of you to determine which return is correct.  If you support that you are the custodial parent, yours would be the return they allow the exemption on.

Suggestion:  File as early as possible.  If you file before him, his return will reject and he will need to paper file if he wants to continue the issue.

[Critter]

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.
 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.

[JennieGlazier]

We agreed to handle the child custody out of court because they was gonna finish the school year there so I made him the custodial parent but as soon as the papers was signed he pretty much dropped my girls off at my door and said he can't afford to keep them there.so I've had them the entire time,enrolled them in school here and he has seen them once or twice in 8 months,now he said that if I claim them he will come get them so he is just using the custodial parent as leverage.does that change anything?

[Critter]

"Legal custody" doesn't matter. Support doesn't matter. Physical custody is the only thing that matters to the IRS. Whichever parent the child lived with the longest (so long as that period was over half the year), in 2015, has first priority on claiming the child.

[macuser_22]

The only "custody" that the tax law cares about is physical custody -  which parent the child(ren) lived with at least 1/2 (or greater part) of the tax year.   For tax purposes that parent is the custodial parent.   The other (non-custodial) parent can only claim if the custodial parent releases the exemption with a signed 8332 form.

Only if you have a legally enforceable written custody agreement that allows him to claim the child(ren) reguardless of the circumstances, might he be able to force you to release the exemption (dependent) to him with a 8332 form, but he would have to pursue that in a local family law court - the IRS will not get involved in local custody agreement disputes.