Who Can Claim the Children?

Love sometimes does not work. Nothing is more taxing than when one parent claims a child or children without the blessing of the other parent. Who has the right to claim the children when the disagreement is between parents?

For parents who live in separate households and who are divorced, separated, or never married, the tax law¹ states the parent with primary custody of the child for the calendar gets to claim the child as a dependent. The parent with primary custody is the custodial parent.

For tax purposes, the custodial parent is determined by the number of nights a child resides with a parent during the calendar year. If the number of nights a child resides with each parent are equal during the year, the parent with the higher adjusted gross income (AGI) will then be the custodial parent.

Procedurally, the custodial parent must waive the right to claim the dependent using Form 8332 or with a written statement. Then the form or the statement is given to the noncustodial parent that wants to claim the child.²

But what actually happens when both parents want to claim the same child or children as their own dependent(s)?

Usually, both parents will e-file or paper file their respective tax returns. The first parent whose tax return is received first, whether that parent is the custodial parent or not, that return is typically processed. Once the other parent files, the tax return is usually rejected and cannot claim the child as a dependent.

However, if the first parent that files the tax return is the noncustodial parent, the custodial parent can still file their taxes and rightfully claim a dependent child. It will require proving you have primary custody as well as qualifying your child as a dependent. But it can be done.

If this is something you are facing or had done to you, schedule an initial case review consultation. I have worked this issue several times for previous clients. Each case, I won back thousands of dollars in tax credits and deductions for the rightful custodial parent.

Even when everything seems spelled out in divorce decrees, separation agreements, or even text messages, harmony sometimes take a back seat to financial gain. Know that if you are the custodial parent, the tax law always supports you claiming the children.