My EX-husband is (according to divorce) supposed to claim our child, he due to covid has not seen our child All year!Child support but NO custody! Do I claim our child?

[ignacia7313-gmai]

He pays child support, which is court ordered, do I contact the IRS since the child has not lived with him at All!

[Carl]

The IRS is a federal agency governed by federal laws. The laws or decrees of a lower level court can not over ride federal laws. Therefore, the IRS does not recognize your divorce degree of custody agreement as authoritive on your federal tax return. Only a federal judge can over ride federal law. Since federal judges do not deal with divorce or custody issues, that will never happen. So you don't need to explain anything to the IRS so long as your follow the federal legal requirements as dictated in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf.  Take special note that child support *does* *not* *count* as support for the child in determining which parent provided more than half of the child's support.

TO see an abbreviated version of the requirements you need to meet to claim the child as your dependent, see the table at https://apps.irs.gov/app/vita/content/globalmedia/table_3_children_of_divorced_separated_4012.pdf

[Opus 17]

The only parent who has the automatic right to claim a child as a dependent is the parent the child lived with more than half the nights of the year.  This is the custodial parent in IRS terminology.  There is no such thing as 50/50 custody in a year with an odd number of nights, and the IRS does not follow state court orders.

If you are supposed to let the other parent claim your child, you have to give that parent a form 8332 dependent release.  That form allows the other parent to claim the child tax credit.  The ability to claim EIC, the child care credit, or use the child to qualify for head of household status always stays with the custodial parent and can't be waived, transferred, or shared.   The other parent can't claim the child as a dependent without a signed form 8332 from you.

If you previously gave the other parent a signed form 8332 covering 2020, you can't revoke it now, it's too late.  The other parent can claim the child.

If you did not yet give the other parent the signed form 8332 for 2020, the IRS won't care if you don't.  The IRS will be perfectly happy to let you claim the child as a dependent.  However, the family court in your state might be quite annoyed if you do not give the form 8332 to the other parent as ordered, and if the other parent complains, the family court can do nasty things to you, like reduce your child support, force you to sign the form for future years so you lose the dependent claim, or even toss you in jail for contempt.   You should not ignore a court order without proper legal advice from your own attorney. 

[Opus 17]

---

@Opus 17 wrote:

If you are supposed to let the other parent claim your child, you have to give that parent a form 8332 dependent release.  That form allows the other parent to claim the child tax credit.  The ability to claim EIC, the child care credit, or use the child to qualify for head of household status always stays with the custodial parent and can't be waived, transferred, or shared.   The other parent can't claim the child as a dependent without a signed form 8332 from you.

---

If you have been alternating custody in previous years without using form 8332, then both you and the other parent have been filing incorrectly.  You may have been losing additional tax benefits you were supposed to get.  You may want to consult with a professional tax advisor.