can i claim my son when i have custody

[Jesspuen82]

can my sister claim my son even though i have custody of my son .my cps case has been closed i'v a letter from cps stating that i have the rights that the case has been ruled out n that i can pick up my son anytime but my sister refuses to return my son n she's trying to claim my son as her dependent she claiming all son's benefits .Can i file a report n can i claim my son even though she refuses to return my son

[Vanessa A · Accepted solution]

In order to claim your son, he would have had to live with your for more than 6 months out of the year.  If he did not, then no, you cannot claim your son. It is possible that your sister would have the right to claim him, if he has lived with her for more than 6 months. The IRS doesn't really look at what CPS says, it goes by the rules below for claiming a child and where the child spent his nights. 

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

[Jesspuen82 · Accepted solution]

yes he was living with me 8 months before she refuses to return my son

[Jesspuen82]

yes my son was living with me 8 months before she refuses to return him she only cares about my son's benefits

[Vanessa A · Accepted solution]

If he lived with you for 8 months in 2023, then yes, you would claim him.  She cannot claim him.  

If she does file and claim him first, you will need to print and mail your return. When you file you will need to include his SSN if it is rejected due to his SSN being duplicated, this will tell you she already claimed him. Then the IRS will determine who gets to claim him using the Tie Breaker Rules.  

[Jesspuen82]

so if i claim i send copies off everything i've right so the IRS can see

[Vanessa A]

Basically, the only thing you need to prove is the time your son lived with you.  So if a CPS letter shows he was removed from your house in September, but you had him the rest of the year, yes, that would show you had him over half the year.  

If you file your return before she does, you may not need to worry about any of it.  If they accept yours first then that is all there is to it.  It is only if you submit your return and it is rejected that you may need to prove or if she then paper files and claims him.  Either way, the IRS would contact you if they need more info. 

[Jesspuen82]

Ok thank you so much hopefully I can get it done before she does 🙏

[Mike9241]

you only file your return claiming your son - no documentation that you are entitled to claim him. if she files first you will have to mail in your return. then in a year or so. more or less, the IRS will send a notice to each of you to amend. you don't respond. if she too doesn't respond there's a second letter to each where the IRS ask for proof that the filer is entitled to claim. the letter will list documents that will serve as proof.   That she won't return your child is a legal issue.  

[Jesspuen82]

Yes I know is a legal issue but no one seems to help me out I've been to police department, called district attorneys, courts everything n the only answer they would give me is there's nothing we can do like seriously

So anyways if we both filed our income taxes later the IRS will send us both a letter