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tbear524
New Member

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

If I give him permission, is there some sort of agreement we can come up with to split the refund amount? 

6 Replies
SweetieJean
Level 15

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Why is not on the birth certificate?
kristie1224
New Member

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Because he was in jail when I had him
Hal_Al
Level 15

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Does the father live with you and the child? If so, he can claim the child, since he is related and meets the other rules for a Qualifying Child.  He needs no paper work form you. The issue of the birth certificate, will only be a problem if the other father tries to claim the child and that is unlikely since you are the custodial parent. If the IRS challenges it (unlikely), then you'll have to go to court to establish paternity.
If the father does not live with you, see macuser22's answer.
macuser_22
Level 15

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Perhaps if you are the custodial parent.  The tax law allows the non-custodial parent to claim the child's exemption if released by the custodial parent.   However, if audited, the IRS can require documentation for everything claimed on a tax return.  It is not unusual for the IRS to require birth certificates or other proof of paternity.    How he would prove it is a legal issue and and a tax issue, so we cannot offer any advice on that other than to consult a local attorney for legal advice.

Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.

https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

This assumes that the child is under age 18 (in most states).  Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 17 for more information)

There is no such thing in the Federal tax law as 50/50, split, or joint custody. The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year. That parent is the custodial parent; the other parent is the noncustodial parent.)

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 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/ch03.html#en_US_2016_publink1000170897

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.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.


**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
lolo_ashly
New Member

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Hi I came across this post cause I am now having a similar issue. What did you do to resolve this? TIA

Critter-3
Level 15

My child's father is not on the birth certificate. She does not have his last name. We have no court order. If I give permission, can he claim her on his tax return?

Read the 2 posts above yours ... they have your answer. 

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