My ex and I have a joint custody. Due to biz trips, none of us spent 183+ days with child, while my ex's parents took care of her often. Can my ex claim dependent/HoH?

[novia02]

My ex husband and I have a joint custody of 50:50 of an 8 year old girl.  However, due to our frequent business trips, none of us actually spent more than 183 days last year.  While we are absent, my ex's parents (my daugther's grandparents) took care of her.  Also, during her summer vacation, she spent about 2 weeks of time with the grandparents away from my ex husband.

Between my ex-husband, his parents, and me, I was the one who spent most of the days with my daughter, so I claimed my daughter as dependent.   Unfortunately, TurboTax does not allow you to claim as Head of Household unless you spent more than 183 days, so I did NOT file as Head of Household.  I just claimed my daughter as dependent.  

My ex husband believes he can claim my daughter as dependent, and also as head of household, as it is his parents who took care of my daughter, and he paid for the plane tickets, etc. to send my daughter to the grandparents' house.   

Any advice on this issue will be greatly appreciated.   My ex is asking me to amend my return and remove my claim for my daughter as dependent, but I am not sure what is the right thing to do. 

[SeanE1 · Accepted solution]

Your question is outside of the scope of Turbotax (A tax preparation software company), and should be presented to a tax attorney. All I can tell you is that the IRS has rules and one of them is the 183 day rule for head-of-household.  In addition, they have a tie-breaker rule when the case of joint custody (50/50) presents itself and can be found below:

When each ex-spouse cannot claim to have spent the majority of the year with their child, the IRS tie-breaker rules determine who can include the child on their tax return as their dependent. This is the IRS rule: 

"The parent with the highest adjusted gross income (AGI) if the child lived with each parent for the same amount of time during the tax year, and they do not file a joint return together;" and can be found here: 

https://www.eitc.irs.gov/EITC-Central/abouteitc/basic-qualifications/tiebreaker

[novia02]

Thank you so much for your help!