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Should we claim our nephew who we don't have custody of but lived with us 7 months of the year or his "custodial parent"?

My husband and I took in our nephew in June of 2017.  He resided with his aunt for the first 5 months of the year and she is the custodial "parent" in court terms.  We didn't have custody of him until December but did provide 100% of his care/expenses from May 27th until now.  We planned to claim him on our taxes for 2017 but his aunt is telling me that she gets to claim him because she has custody.  I have explained that since he was with us more than half the year that she is not correct.  She had to use form 8832 with her ex husband but this isn't the same situation and she seems to think it is.  I'm not sure who is right here and I really don't want to get our return caught in a mess.  She basically just wants the money and we know this but we are trying to do the right legal thing here.

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Level 15

Should we claim our nephew who we don't have custody of but lived with us 7 months of the year or his "custodial parent"?

Complicated situation.

The 8332 form does NOT apply in this situation. The 8332 form is *only* for separated or divorced *parents* that live apart.  Since neither of you are parents the 8332 form does not apply.

Custody has two meanings, tax custody to claim a dependent is not the same as legal custody that a court might issue.  The IRS only cares about physical custody.

Tax custody for claiming a dependent is physical custody (where the child lived the greater part of the tax year, but more than 183 nights).  For a non-parent to claim a minor child as a Qualifying Child, the child must have lived with them more than half the tax year (more then 183 nights) and cannot be claimed by a parent.    Support is not a requirement as long as then child did not support him/her self.

If you meet the requirements then only you can claim the child.


---Tests To Be a Qualifying Child---
(Must pass ALL of these tests)

NOTE: If a child passes all of these tests he must say “yes” on his/her own tax return (if he/she files one) that another taxpayer CAN claim him/her as a dependent even if they DO NOT claim him/her)

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother,stepsister, or a descendant of any of them.

2. The child must be (a) under age 19 at the end of 2016, (b) under age 24 at the end of 2016 and a full-time student* for any part of 5 months of 2016, or (c) any age if permanently and totally disabled and must be younger than you (or your spouse if filing jointly).

3. The child must have lived with you for more than half of the year (There are exceptions for temporary absences such as school, illness, business, vacation, military service).

4. The child must not have provided more than half of his or her own support for the year.

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.

6. The child is not filing a joint return.

7. The child must be a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico

 *A full-time student is a student who is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any 5 calendar months of the year.

See IRS Publication 17 for more information.

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
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