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Which parent can claim a 19-year child who is a full-time student as a dependent (parents are divorced)

My son is a 19-year old full-time student who is away at college 9 months of the year.  He is home 3 months during the summer, splitting his time between Mom's house and Dad's house (but spending a few more nights at Mom's house).  He has a job but it does not pay anywhere close to half his own support.  He is "emancipated" in the state of CA since he is over 18 and graduated from High School, so the divorce custody rules no longer apply. Dad has a higher AGI and pays a larger share of the college expenses per divorce decree.  Which parent is can claim the son as a dependent?  Can the parent who claims him as a dependent also file as Head of Household?
    Mom.  It comes down to a "few more nights at Mom's house".
    A child of a taxpayer can still be a “Qualifying Child (QC)” dependent, regardless of his income, if:
    1. he is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled
    2. He did not provide more than 1/2 his own support (note that which parent provided the most support does not matter)
    3. lived with the parent (or was away at school) for more than half the year

    "Head of Household" is not based on who claims him as a dependent, but who he lived with the most. Again Mom.
    The tuition credit or deduction does go with the dependency; so Mom claims that too. She is allowed to claim the tuition, paid by the Dad, when calculating the amount of the credit.

    Claiming that the child is emancipated actually works against Dad because there is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent (exemption), child tax credit & education credits; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits cannot be split in any other manner. So, dad could claim the dependent and education credit if Mom will sign and give him form 8332; while Mom still claims Head of Household and the earned income credit.  But if the child is "emancipated", then only one parent can claim any tax benefits.
    • Isn't "emancipated" the wrong term to use in this situation?  Emancipated usually means a minor child that is no longer subject to the control of his/her parents, either because of a court order, marriage, military duty, etc.  If the child is 18 or older, he/she is then an adult, by law and no longer a minor.  An adult cannot be  emancipated.  

      Under Federal tax law, even an adult under the age of 24 that is a full time student, can still be a qualifying child for dependent purposes (subject to the rules described above.)
    • Thanks for your comprehensive answer.  To help clarify, I have two follow-up questions:  (1) What if the 19-year old son spends the same number of nights at Mom's house as Dad's house when he is home from being a full-time student staying in a dorm at college?  (2) The reason I mentioned emancipation was from reviewing pps 8-10 in Pub504 (2011) - specifically examples 5 and 6.  I thought these would apply since my son is 19, a full-time college student, considered an adult, and there is no longer any child support?  Also, I'm assuming the concept of "who has custody" from a divorce settlement perspective is moot (Mom and Dad each had 50% custody while he was a minor).   Based on your response, for tax purposes, it sounds like I need to count the number of days my adult student son spends at each house when he is home during vacations and summers from college.  This is so complicated!
    That is correct; for tax purposes, you need to count the number of days the dependent spends at each house when he is home during vacations and summers from college. You also need to coordinate with the other parent who claims what. If you both claim him for the same tax benefits (see special rule above); the IRS will get involved to make that determination. The custody issue isn't moot, depending on the wording in the documents. But, the IRS never goes by legal custody, even for minors; it's physical custody (counting the number of nights).
    Physical custody gets you all tax benefits. Form 8332, or a court order, can only get you the exemption ($3700 deduction) and the education credit (& the child tax credit when the child was under 17).

    If the number of nights is equal, the parent with the higher AGI is the custodial parent. But if Mom disputes your calculation, and she has always been the "custodial" parent; the IRS most likely will side with her.

    Re: emancipation; see macuser_22's explanation above. The examples in Pub 504 are not for full time students under age 24.
    • I believe what the IRS is saying, is that when a child becomes emancipated, or over the age of majority (the IRS used the term "emancipated" to describe that), then the special rules for determining custody for divorced or separated parents no longer applies and the exemption and credit can no longer be split between the parents based on custody, because the term "custody" no longer applies to an adult, or emancipated child.

      That does not mean that the IRS does not still count the days (or nights) where the child lived to determine which parent can claim all of the credits for the child.

      For CA the age of majority is usually 18 unless the child is still in high school, then it can be 19.   It can be different in different states.