Non biological parent claiming child as an independant..

[ScooterB88]

I have a question regarding the claiming of a child as an independent. My wife is divorced from her ex husband and they have a custody agreement when they each claim a child at tax time. He has stopped working, and stopped playing child support. He has stated he is not paying his taxes this year as well, all to avoid his taxes being taken for back child support (I know, it gets better). He is having his current wife, claim the child as a dependent on her taxes and they are not filing jointly. My wife and her ex have split custody but the kids live with us. Is this okay that she claims the child as a dependent and she is not even the mother of the child? We aren't looking to claim the child but if he is not filing his takes jointly or independently, how is she allowed to claim the child? 

[Vanessa A · Accepted solution]

Is there a reason you do not want to claim the second child on your return this  year?  Who does the child live with for more than half the year?

The agreement is between the ex husband and your wife, not with his wife, so technically, she cannot claim the child if the child lives with you for more than half of the year.  So if they live with you for 6 months and 1 day then the right to claim is with you and your wife, not her ex husbands wife.

A step parent can claim a child as a dependent, but the child has to meet the criteria of being their dependent in order to claim them.  

The following criteria must be met to claim someone as a qualifying child:

• Your child (including adopted and foster children), your sibling, or a descendent of any of them.
• Age 18 or younger at the end of the tax year OR under 24 (and younger than you and your spouse) if they are a full-time student
• Lived with you for more than 6 months during the tax year
• They did not provide more than half of their own support
• They did not file a joint return, unless it was to claim a refund

[ScooterB88]

Well the children live with us more than 6 months of the year. They only go to his house every other weekend during the school year, every other week during the summer and are split on holidays. I am just seeing a WHOLE lot of tax fraud here considering he is not even submitting his tax paperwork just to avoid it being collected by the government for back child support and not sure if what they are doing is even allowed.  

[TomK2023 · Accepted solution]

Based on your scenario, feel free to claim both children.  The ex-husband's new wife has no right to claim your wife's child.  

If the step-mother does try to claim that child and initially succeeds (she files before you), the IRS will eventually contact both of you (by letter) to figure out who gets to claim the dependent. The losing party will then be liable for any additional taxes, penalties, and/or interest as a result of the false claim.

[ScooterB88]

Thank you both for your time!