Should my mother in law be able to claim my 3 children when we have joint custody? I pay child support.

Only a federal judge can override IRS rules, requirements, regulations and federal tax law. A lower court

judge cannot. Period. Since federal judges do not deal with custody, divorce or separation issues, that’s

just never going to happen. So you have no choice but to follow the IRS requirements, regardless of

what your custody agreement or court order may say, like it or not.

For the divorced or separated parents of a dependent the IRS clearly defines each parent. First, there’s

the custodial parent, then there’s the non-custodial parent.

Custodial Parent – This is the parent the child lived with for more than 182 nights (not days) of the tax

year. Temporary absences for things like attending college, a hospital stay or summer camp count,

provided the dependent returns to the household of the same parent they departed from when leaving

for their temporary absence. If the parent’s separated or divorced during the tax year, then the

custodial parent is the parent with whom the dependent lived the greater number of nights during the

tax year. In the event of a tie, the custodial parent is the parent who provided more than 50% of the

dependent’s support. Court ordered child support does not count for this, for either parent. In the event

of another tie, then the custodial parent is the parent who has the higher AGI (Adjusted Gross Income)

as shown on line 37 of the 1040, or line 21 of the 1040A.

Non-Custodial Parent – If you don’t qualify as the custodial parent, then you are the non-custodial

parent.

Now the non-custodial parent can claim the child as their dependent, provided the custodial parent

provides the non-custodial parent a signed IRS Form 8332 releasing their claim of the child to the noncustodial

parent. In cases where the non-custodial parent believes they have a right to claim the

dependent based on a custody agreement, divorce degree or other legally enforceable document, the

IRS will not recognize that document and therefore will not abide by it, or honor it. However, if

necessary the non-custodial parent can take the custodial parent before the court that issued the legal

document, and that lower court can order the custodial parent to sign the IRS Form 8332.

If the custodial parent refuses to sign the form then said court can find the custodial parent in contempt

of court. That lower court can impose fines, penalties, and possibly even jail time if the custodial parent

refuses to sign the IRS Form 8332. But under no circumstances will the IRS get involved in any legal

proceedings on the behalf of either party, and under no circumstances can the non-custodial parent

claim the dependent without a signed IRS Form 8332 from the custodial parent. There just flat out are

no exceptions.