Can a grandparent claim a grandchild that did not live with her all year. Custodial parent has no income, other parent pays child support. Grdparent provides support

[bandrews1610]

Children live with custodial parent which only income is child support and food stamps. The grandparents provide clothing, additional support for child. Custodial parent has not signed form 8332 and child support is not consistent. Can the custodial parent let the grandparent claim children.

[DianeW]

Yes.  As long as your grandmother meets the tests for claiming a your child as a dependent.  Key information is that your child will not be a qualifying child because she does not live with your grandmother, however she can be a qualifying relative for tax purposes. As you indicated, you cannot waive the exemption to the noncustodial parent.

Qualifying Relative:

• You provided more than half of their support.

• They made less than $4,050 in gross taxable income. (Social Security income generally doesn’t count here.)

• They live with you (365 days in the year) or they are related to you.

• They aren’t a dependent on someone else’s taxes.

• They aren’t doing their taxes with a spouse (married filing jointly).

• They are a U.S. citizen, resident alien, national, or a Canadian or Mexican resident.

  You can’t claim a dependent if you are a dependent on someone else’s taxes.  Use the link here for more information.  Rules for Claiming a Dependent on Your Tax Return

• IRS Worksheet to Determine Support (click this link to print the worksheet)

[JJOTOOLE]

I am in this exact situation but the father of our granddaughter (who did pay some child support in 2019 but is in arrears) is threatening to sue us for fraud if we claim the child. In our case we paid for almost 100% of our daughters plus 2 kids living expenses for 5 months of 2019 which far exceeds what she got in child support (they live in their own apartment). The second grandchild is not his and we claim him already with no complications since his father doesn't do a return.  We believe by law we are entitled to claim the second grandchild but are not sure if the 2000 credit is worth the aggravation and possibility of opening ourselves up to an irs audit or lawsuit. Thoughts?

[mesquitebean]

@JJOTOOLE  You're posting in an old thread from last year, where your comment may or may not be noticed.

I'll see if I can get someone familiar with dependent situations to comment in this thread.

@Hal_Al  Are you able to assist here when you are next in the forum?   Thanks!

[Hal_Al]

@JJOTOOLE Since the grandchild did not live with you for more than half the year, you can not get the $2000 child tax credit. You would only be allowed the (up to) $500 Other dependent credit.

There are two types of dependents, "Qualifying Children"(QC) and standard ("Qualifying Relative" in IRS parlance even though they don't have to actually be related). There is no income limit for a QC but there is an age limit, student status, a relationship test and residence test. Only a QC qualifies a taxpayer for the Earned Income Credit (EIC) and the Child Tax Credit. They are interrelated but the rules are different for each.

So,  you also can't claim  the  child tax credit (CTC), on the other child, that doesn't live with you.

See the qualifying relative rules above.  One clarification. It says: They aren’t a dependent on someone else’s taxes. It should say they are not the QC of another taxpayer. So, if the mother is required to file a tax return, you cannot claim her kids.

I assume the father also does not live with the child. There are special rules for divorced and separated parents, so he can claim the CTC (but not EIC).  But, he can not do so without the written permission of the mother, on IRS form 8332.  So, the father has no chance of getting a court or the IRS to award him the tax benefits (my non lawyer opinion).  

I assume the mother does not need to file a tax return. So, she should  probably let the father claim the child for $2000, rather than you for only $500. She can probably get the IRS to offset it for back child support, by going thru the local child support agency.

[JJOTOOLE]

Thanks for the info. You are correct that the mother is not currently filing a tax return and the father does not live with them. They are only Separated so there is no formal agreement on who can claim who but she has sole custody of the two children. I question the QC deduction being limited to them living with me however. It was my understanding that if you are providing more than half of their support it didn't matter where they lived in the same house or not.  Thoughts?

[Hal_Al]

If you are providing more than half of their support it didn't matter where they lived, for them to be a dependent.  But to be a qualifying child, it does matter. Here are the qualifying child rules:

.A child closely related to a taxpayer can be a “Qualifying Child (QC)” dependent, regardless of the child's income, if:

1. He is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled
2. He did not provide more than 1/2 his own support
3. He lived with the relative (including temporary absences) for more than half the year
4. He is younger than the relative (not applicable for a disabled child)
5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child (this essentially means that you have the parent’s permission to claim the child, if the child also lived with the parent more than half the year)
6. If the parents of a child can claim the child as a qualifying child but no parent so claims the child, no one else can claim the child as a qualifying child unless that person's adjusted gross income (AGI) is higher than the highest AGI of any of the child's parents who can claim the child.

Reference:

 https://turbotax.intuit.com/tax-tools/tax-tips/Family/Rules-for-Claiming-a-Dependent-on-Your-Tax-Re...

[Hal_Al]

@JJOTOOLE  If TurboTax is giving you the CTC, you've entered something wrong in the dependent interview; most likely the number of months the child lived with you. 

[Oneillrobert45]

I am 22 years old and my grandfather clam me on his taxes and I havent lived with him in 2 years what can I do about it and I filed my own taxes this year

[Hal_Al]

@Oneillrobert45 

If someone else claimed you, as a dependent,  inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming yourself, if appropriate. The IRS will process your return and send you your refund, in the normal time ("normal time" is gonna be longer this year). Shortly (up to a year) thereafter, you’ll receive a letter from the IRS, stating that you were claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the exemption, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.

That said, with the tax law change, effective 2018, most dependents will get the same refund whether they claim themselves or not.  The personal exemption has been eliminated and the standard deduction increased.   Unless you're claiming something special, e.g. the tuition credit.  The software will tell you if being a dependent is disqualifying you from a tax benefit.

[Chriseaton2011]

I am in a similar situation.  I was never married to my ex but had two children with her.  She does not work and is on ssdi.  She files no taxes.  She rents off from her parents and allows her parents to claim the children.  I pay support and take the children biweekly.  I feel I am entitled to claim them as they are my biological children, their mother can not claim them and I pay support.  They do not live with me full time. However I meet all the other qualifying tie breaker rules.  Looking forward to a reply! Thank you for your help.

[Chriseaton2011]

@Hal_Al 

[Hal_Al]

Bottom line: the mother (the custodial parent*) gets to decide who will claim her child.

A child can be the “qualifying child” dependent of any close relative in the household. If your ex lives with  her parents, they have the right to claim the child, if the mother doesn't claim them.

The grandparent's right takes priority over any right you (the non custodial parent) has.

In fact, you have no right.  The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.   Even if a court order, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded order should require her to provide that form. 

*For tax purposes, there is no such thing as joint custody, regardless of what your  agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody. 

[Victorialem]

So I was reading the comments and have a similar situation. I had my kids for 5 1/2 months and the grandparents claimed them for the year. I also paid for child care well over 100 % of their need to support them. I was just in the middle of moving. Can they claim them ? 

[SharonD007]

It depends. Did your children live with their grandparent's for more than six months?  If so they may be able to claim them if they meet the basic requirements:

There are dependency tests that must be met for you to determine if you are able to claim your child as your dependent. Below you will find the basic qualifiers: 

For a Qualifying child 

• They have to be related to you. 
• They cannot be claimed as a dependent by someone else. 
• They must be a U.S. citizen, resident alien, national, or a Canadian or Mexican resident. 
• If they are married they cannot file a joint return with their spouse. 
• They must be under the age of 19 (or 24 for full-time students). 
  • No age limit for permanently and totally disabled children. 
• They must have lived with you for more than half the year (exceptions apply). 
• They did not provide more than half of their own support for the year. 

For additional information, please review Who can I claim as a dependent?  and

IRS Publication 501 on Dependents, Standard Deduction, and Filing Information.  

Interactive tool to determine who you can claim as a dependent.