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Child Custody | Family

Can a Non-Custodial Parent Claim a Child on Taxes?

4 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

A non-custodial parent can claim a child on taxes if they meet specific guidelines. By default, the Internal Revenue Service (IRS) considers the custodial parent to have primary physical custody of the child during most of the tax year. However, if a non-custodial parent has primary child custody, they can claim the child as a dependent.

Either parent can waive their claim and let another parent or guardian claim their child as a dependent by filling out specific tax forms.

A non-custodial parent may need to obtain a written statement from the custodial parent for permission to list their child as a dependent on their tax return. Separately, a custodial parent may need to prevent the non-custodial parent from falsely claiming their child as a dependent. In either situation, a letter from a family lawyer can help resolve matters.

Determining Custody of Dependent Children for Tax Purposes

IRS rules state that only one parent can claim a child as their dependent each year even if both parents meet specific criteria set forth by the IRS.

If the child lives in a parent’s home for more than half the year, then their parent will likely be able to claim them as a dependent on their taxes.

If a child resides at least half of the time with a parent for at least two of the past three tax years, then that parent is considered custodial for tax purposes regardless of legal custody orders or divorce decrees.

If a child lived with both parents during the tax year, and the parents shared joint custody, generally the parent with the higher adjusted gross income should claim the child as a dependent. However, an accountant or tax professional should provide tailored guidance for your situation.

Form 8332 and Child Tax Credits

The custodial parent must complete IRS Form 8332, a “release of claim form”, to allow a non-custodial parent to claim a child as a dependent for tax purposes. This form releases the custodial parent’s claim. A custodial parent can also use Form 8332 to claim a dependent child in alternating years or revoke a non-custodial parent’s future claims entirely.

You may be eligible for an additional child tax credit if you are a custodial parent. The Child Tax Credit (CTC) is a tax credit available to eligible taxpayers with one or more dependent children under age 17. Noncustodial parents are typically not eligible for the full Child Tax Credit. The custodial parent can specify their right to the CTC in a divorce, separation, or joint custody.

When the Other Parent Falsely Claims Custody on Tax Returns

In most cases, claiming a minor on taxes without the other parent or guardian’s approval is illegal, and if discovered, can lead to fines. In situations where the other parent is illegitimately claiming a child on tax returns, you can consult an accountant, a family lawyer, or contact the IRS directly and report the issue.

You should not alter your taxes to accommodate a false statement on the other parent’s taxes. However, you should retain documentation proving the truth of your claim. Proof of custodial arrangements and other documents that prove the parent-child relationship can If both parents, filing separately, claim a dependent child on their taxes, Suppose the tax return is under audit, and you receive a tax audit letter from the IRS. In that case, reviewing and understanding the details of your personal exemption and any dependent exemptions you may have claimed is essential.

One way to prevent another parent from claiming your child on their taxes is to obtain a court order, either separately or as part of divorce and custody proceedings. The court order will state that the noncustodial parent does not have the right to claim the child as a dependent on their taxes. Both parents may need to sign this order, and can go to court if it is violated.

Child custody and taxes are both difficult to understand. Dealing with an uninformed or uncooperative parent makes these situations even harder. Legal help may be a timely, cost-effective way to resolve dependent child taxation issues.

Unbundled Legal Help is a uniquely useful way to get help. An “unbundled” attorney can provide affordable limited representation, like legal advice or drafting letters to resolve tax issues. They also offer full representation. Get started today with a free consultation.

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