Who can claim dependent?

[MSmith4]

I am the custodial parent and have always claimed the children. The non custodial parent gets less then half a year of visitation and has refused to pay court ordered fees for school, insurance, copays and more. This year 1 child ended up residing with non custodial parent around 50% of the year despite court order not allowing this (refused to return child, in contempt, going to court for this) 

My question is who gets to claim the child then? I am still paying all fees in full and non custodial hasnt paid their half. If both of us claim child and later on in the year irs sends us both a form saying child was claimed twice and 1 needs to amend it, and both refuse, then what does the IRS do? Who is considered the 1 allowed to claim dependent? The parent with the court order stating they are the custodial or the non custodial parent who claims they had child for 51% of the year. 

[rjs · Accepted solution]

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@MSmith4 wrote:

My question is who gets to claim the child then?

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The parent that the child lived with for more than half the year gets to claim the child. The IRS has to go strictly by the tax rules. They cannot consider what the divorce decree or court order says, or which parent pays for what.

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@MSmith4 wrote:

If both of us claim child and later on in the year irs sends us both a form saying child was claimed twice and 1 needs to amend it, and both refuse, then what does the IRS do?

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If you both refuse to amend, the IRS will send both of you another letter asking for evidence to support your claim that you are the parent who is entitled to claim the child. The IRS will then decide who gets to claim the child. The other parent will lose the dependent and will have to pay additional tax plus interest and penalties.

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@MSmith4 wrote:

Who is considered the 1 allowed to claim dependent? The parent with the court order stating they are the custodial or the non custodial parent who claims they had child for 51% of the year. 

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Under the tax laws, the parent that the child lived with for more nights during the year is the custodial parent, no matter what the divorce decree or the court says. But it's not a matter of who "claims" that the child lived with them more than half the year. They have to actually prove it. You said that the child was with the other parent "around" 50% of the year. If it's that close, you are going to need very good documentation to show which parent the child lived with for more nights during the year.