Who can claim my children?

[jingletoes]

My kids live with me, and we live with my uncle. My kids dad rarely visits or takes them, but he does pay child support (although he is behind on it). My uncle planned to claim my kids since he pays for our current living situation and replaced everything my ex kept from us (when their dad kicked us out, we were lucky enough to have my uncle there for us so he let us move in, bought clothes, beds, etc for us and let me have a year of not paying bills so I could find a steady job and a daycare for the kids). My ex agreed to take the kids every other weekend, but he never does. He took our older child 8 times last year (either Friday afternoon to Saturday morning or Friday afternoon to Sunday morning) and didn't take our younger child at all. My uncle planned to claim them as qualifying relatives, but we found out my ex claimed my children... I know for a qualifying child, the child needs to live with you for at least 6 months of the year for you to claim them, but does it change if I can't claim them myself? We made sure they met all the requirements for qualifying relatives and i know they don't meet the requirements for a qualifying child, but I'm not sure if it's different if the custodial parent can't claim them as qualifying children... so who can claim them? Do they meet the requirements for his qualifying children since I can't personally claim them? Or does my uncle have more of a right to claim them?

[Hal_Al · Accepted solution]

As you know, you have first claiming rights, as the custodial parent.  The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. 

For tax purposes, a child is the "Qualifying Child" of any close relative (great uncle qualifies) he lives with, not just his parent. So, yes you can let your Uncle claim your child. There is one other requirement; your uncle's income must be higher than yours. The uncle has  a higher claiming right that the father, because he lives with the child. Note that your uncle can claim the child as a Qualifying Child, not just a qualifying relative. That means he gets EIC, child tax credit and head of household.

[Hal_Al]

If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.
Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The taxpayer who can claim a Qualifying Child almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.   
<a rel="nofollow" target="_blank" href="https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030">https://www.thebalance.com/cl...>