I'm the custodial parent of my son but per our divorce agreement his father can claim him as a dependent but I'm still supposed to get the child tax credit, how?

[xmasbaby0]

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 18.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[Opus 17]

You can't do that.  The child tax credit is the only benefit of claiming a dependent that can be transferred to the non-custodial parent.  (Other benefits of claiming a child as a dependent, like EIC, the dependent care credit, and head of household status, can only be claimed by the custodial parent and can't be waived, transferred or shared.)

Perhaps your custody order instructs you to do something that is not allowed under federal tax law (federal law always trumps state court orders).  This might be something you need to review with your attorney.  

Can you explain your situation more?  Maybe we can help you with better information if we know more about the situation.  

[bluerosebud28]

Yes I'm the custodial parent. My son lives with me full time and only sees his father every other weekend at most. Our court order specifically says he can claim him as a dependent only but all tax credits including the child tax credit is supposed to go to me. I've not signed a form and this is the first year I've had an issue of not getting the credit when checking the box saying the non custodial parent is claiming him

[Opus 17]

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@bluerosebud28 wrote:

Yes I'm the custodial parent. My son lives with me full time and only sees his father every other weekend at most. Our court order specifically says he can claim him as a dependent only but all tax credits including the child tax credit is supposed to go to me. I've not signed a form and this is the first year I've had an issue of not getting the credit when checking the box saying the non custodial parent is claiming him

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Your court order tells you to do something that is impossible under the tax law.  You may need to discuss this with your attorney and your ex's attorney.  

Under the law, if you give your ex a signed form 8332 allowing your ex to claim the child as a dependent, your ex will get the child tax credit (normally $2000, temporarily raised to $3000 or $3600 for 2021).  Your ex may also get a $1400 stimulus payment for the child.  There is no way for you to get these credits if you give your ex a signed form 8332.

If you don't give your ex a signed form 8332, you will get the credits, but you are technically in violation of the order.

The rules are here.

https://www.irs.gov/pub/irs-pdf/p501.pdf

(This has been the case since 2018.  In 2017 and earlier, the dependent exemption and the child tax credit were two different things, but even then, they could not be separated in the way your court order indicates.  Your court order has always instructed you to do something that is impossible under federal law.)

Good luck.