I cant claim my son who lives with me, but the father keeps claiming him without my permission. The father does not reside with us nor supports him. Please what can I do before he claims him for this year.
Assuming that the child lives with you and you meet all of the requirement to claim the child as a dependent.
Then unless you have a pre-2009 divorce decree that specifically states that he can claim the child with no conditions attached, or you have previously given him a signed 8332 form releasing the child's exemption for all future years and you have not revoked that in writing, then unless you give him a current 8332 for releasing the child's exemption (dependent) to him, he cannot legally claim the child since he must attach that 8332 form to his tax return to claim if he did not physically live with the child more than 1/2 the year.
What you can do is:
1) e-file before he does and claim the child.
2) if he e-files first then your e-file will reject because your son's SSN has already been used.
3) If that happens, then print and mail your return claiming your son.
4) The IRS will pay both refunds, but within a year (up to two years possibly) both parents will receive a letter asking if the child was claimed in error. After you answer that letter that the child was not claimed in error then if the other taxpayer does not amend, the IRS will follow up with a 2nd letter asking for more details. Simply provide the information that they ask for to supports your claim that the child lived with you and you did not release the child's exemption. (Don't ignore the letters or you will loose).
5) The IRS will determine which tax payer gets to keep their refund and which must pay it back along with interest and possible penalties. The parent that the child lived with will almost always win.
Read the answers and comments below for the correct course of action.
The IRS decides custody based on where the child actually lives, not what any court order says. If the child lived with your friend (slept in his home) more than half the year (more than 183 nights) then your friend is fully entitled to the dependent and does not owe the other parent a dime. He may need to count the number of nights, and he should take steps to document it as well as possible, as self-defense against a complaint. Posts to social media showing that the child was in his home, date stamped photos, maybe a letter from the school showing that the bus picked up the child there. A letter from your neighbors if the kids play together a lot. Anything else that can show the child lived there more 183 nights. Going forward, I would take a selfie of the parent and child together at bedtime every day, make it a ritual, to prove the number of nights in the future.
If the child did not stay there more than half the year, then your friend is screwed because he relied on "verbal" permission. The IRS regulations require that, if he will claim the dependent, he must get a signed release form from the other parent and mail it in with his return. That release form can not be revoked by the custodial parent once filed. But since this was only verbal, he was not allowed to claim the dependent.
However, he probably does not owe her "all the money from his entire tax refund". What he can do is tell the mother to claim the dependent and print and mail in her tax return. Then she will get whatever amount she is legally entitled to, which may be a lot less than "his whole refund" especially if her income is lower. Your friend will file an amended return to remove the child dependent and pay back whatever *part* of his refund was due to claiming the child, which may be less than the whole thing.
But he should not necessarily give up so easily. If he claims the child and the ex files a complaint, I don't think the IRS will actually do anything. If the ex files a tax return with a competing dependent claim, the IRS will investigate both parents, and they will be looking for custody evidence from both parents. They aren't controlled by the court order. While it may be hard for him to prove he physically had the child, it will be even harder for her to prove.
In my suggestions for evidence I should also have mentioned emails or texts about custody, drop offs and pick ups. "Can you keep him an extra night so I can go clubbing." "You didn;t show up to hand him over so I guess I'm keeping him another night." etc.
I wonder if the ex is trying to get "his whole refund" because she knows she won't qualify for much even with the child.
Most important is that he not pay her "his whole refund" to prevent her from filing a complaint. Because even if he does pay her off, she could still file a complaint, and he is still at risk of losing the dependent investigation, and then would have to pay twice -- once to her and again to the IRS. IF he actually wants to remove the dependent claim (and I don't think he should), but IF he wants to remove the dependent claim the ONLY thing he should do is file an amended return that removes the child and pay back the IRS, not her, and tell the ex to file her own return and get whatever she is actually entitled to that way.
The custodial parent can also file a court motion for a Cease and Desist order.