My 4 nieces and nephews lived with their father from Jan-May, with my mother from May-Sept, and with me from Sept until now. I gained custody in June, who can claim?

[pm9116]

The mother and father separated in 2021, the two girls were removed from his custody in early 2022 and the boys stayed with him until May of 2022.  All 4 children stayed in their grandmother's house from May until September.  I informally stayed in the same house to support the children physically and financially.  The children then moved into my home in September and continue to reside with me.  I currently have custody of all 4.  

The children did not live with any one person for more than half of the year, but the father has already filed them as dependents.  I have been supporting the children since May and I believe they would be counted as Qualifying Relatives.  Or would the children not technically count as anybody's dependent since they did not live with any person for more than half the year?  If the father did incorrectly claim the children as his dependents, would he need to file an amended form?

[rjs · Accepted solution]

The children did live with you for more than half the year. They don't have to have lived with you in your own home. As long as you and they lived in the same household, they were living with you.

They are probably your Qualifying Children, not Qualifying Relatives. If one of their parents is your brother or sister, the children meet the relationship test. For you to claim them as qualifying children it doesn't matter who supported them, as long as they did not provide more than half of their own support themselves.

If the father was not entitled to claim the children, then yes, he should file an amended return to remove them. Even if he does that, you will not be able to e-file your tax return claiming them. You will have to file by mail. If he can be convinced to file the amended return that would make the situation much smoother. If he doesn't do that, the IRS will challenge both your tax return and his, and you would have to convince the IRS that you are the one who is entitled to claim them.

The IRS doesn't look at who had legal custody. They look at who the children lived with.