My girlfriend and my child live with her mother, we live 3 hours apart. I work out here and provide support as well as have them out with me for a few weeks of each month. Her mother wants to claim my

[macuser_22]

Support is irreverent.     Who can claim the child depends who the child physically lived with.   If the child lived with the mother and grandmother more then half the year then they can agree which one claims the child.

If you did not live with the child more than half the year (more then  183 nights) then  you have no say in it whatsoever.

[Opus 17 · Accepted solution]

First, the only parent who has the automatic right to claim the child as a dependent is a parent where the child lives more than half the nights of the year.  You can't call it 50/50, you have to actually count the number of nights.  Visiting during the day doesn't count.

Next, it sounds like the mother and child visit you together, so no matter how many nights you have the child with you, the mother has the child more nights.

Finally, we have to ask how many nights of the year, the child sleeps in the grandmother's home, and whether it is more than half the year (184 or more nights) or less than half the nights of the year (183 or less--since 2020 was a leap year, it is possible the child lived 183 nights in each home, and 183 is not more than half.)

So then, we can apply the rules from publication 501. 

https://www.irs.gov/forms-pubs/about-publication-501

1. If the child slept in your home more than half the nights of the year, and also lived with its mother more than half the nights, then either you or the mother can claim the child as a dependent.  If you can't agree, the tiebreaker goes to whichever parent spent more total nights with the child.

2. If the child slept in your home less than half the nights of the year, you can't claim it as a dependent unless the other parent gives you a signed release form.  Even with the release form, you can file as head of household or claim EIC, since those benefits go with the parent where the child lived more than half the nights, and can't be waived, transferred or shared.

3. If the child slept in the grandmother's home more than half the nights, then the grandmother could claim the child as a dependent, but only if the mother allows it, and the grandmother must have more taxable income on her tax return than your girlfriend has on her tax return.  If your girlfriend wants to claim the child as a dependent, she can and the grandmother can't, because mom's right to claim comes first. 

If both the grandmother and mother qualify to claim the child, it may be worth doing some test tax returns to see which way gives the largest overall refund.  In some cases, the grandmother will save more than the mother will lose, especially if the mother does not work.

[cirobertson1]

Yea they spend 2 weeks of every month here

[Cynthiad66]

To claim your dependents, it is best to use the following link to determine if you qualify to claim the dependent.  However, to avoid having two people claiming the same dependent, it might be best to discuss and agree.

You can claim a child, relative, friend, or fiancé (etc.) as a dependent on your 2020 taxes as long as they meet the following requirements:

Qualifying child

• They're related to you.
• They aren't claimed as a dependent by someone else.
• They're a U.S. citizen, resident alien, national, or a Canadian or Mexican resident.
• They aren’t filing a joint return with their spouse.
• They're under the age of 19 (or 24 for full-time students).
  • No age limit for permanently and totally disabled children.
• They lived with you for more than half the year (exceptions apply).
• They didn't provide more than half of their own support for the year.

Qualifying relative

• They don't have to be related to you (despite the name).
• They aren't claimed as a dependent by someone else.
• They're a U.S. citizen, resident alien, national, or a Canadian or Mexican resident.
• They aren’t filing a joint return with their spouse.
• They lived with you the entire year.
• They made less than $4,300 in 2020.
• You provided more than half of their financial support.

When you add someone as a dependent, we'll ask a series of questions to make sure you can claim them. There may be other tax benefits you can get when you claim a dependent.

How to Claim A dependent