You must answer that they spent less than six months with you, less than half the year. You can never qualify as head of household. You are not a “residential parent” for IRS purposes, no matter what your divorce decree says. Federal tax law always trumps state court orders, and many state judges and divorce lawyers don’t understand a tax law.
For the IRS, the only parent who is entitled to claim the child as a dependent is the parent where the child lives more than half the nights of the year. This is the “custodial parent”. The custodial parent is automatically entitled to the child tax credit, the dependent care credit, earned income credit, and head of household filing status.
The noncustodial parent may only claim the children as dependents if the custodial parent gives the noncustodial parent a signed form 8332 release. This allows the noncustodial parent to claim the child tax credit, but the dependent care credit, earned income credit, and head of household status always stay with the custodial parent and can’t be waived, transferred, or released.
In fact, you can’t claim the children at all unless you have the signed release form. If you do not have the signed release form, the IRS will not award you the dependent. The IRS does not care what your divorce order says and will not enforce it for you. However, if the other parent refuses to sign the form, you can take them to state court and ask the state court to hold them in contempt or force them to sign the release.
