Q: Can a parent that only has a child 48 days out of the year claim the child on their taxes?
My wife has full custody of our 3 year old son and his father has every other weekend as parenting time. However in their divorce decree it stated the father could claim him on taxes every other year. According to the IRS it would be illegal for the father to claim the child tax credit as he doesn't have him at least 50% of the time. My wife wants to be able to claim him but doesn't want to go back through court to change it. Does the father only have the right to claim him as a dependent but not claim the child tax credit? Is my wife able to claim the child tax credit without worry of trouble from the IRS? If so, since he would be able to claim him as a dependent for the year does my wife not claim as a dependent but still claim the child tax credit? If everything is correct so far is there some documentation we are able to show the father he is only legally able to claim him as a dependent but not able to claim the child tax credit even if the divorce decree states it?
A:
IRS Publication 596 discusses the exemption for divorced parents. The rules are as follows:
Special rule for divorced or separated parents or parents who live apart.
A child will be treated as the qualifying child of his or her noncustodial parent (for purposes of claiming an exemption and the child tax credit, but not for the EIC) if all of the following apply:
The parents:
Are divorced or legally separated under a decree of divorce or separate maintenance,
Are separated under a written separation agreement, or
Lived apart at all times during the last 6 months of the year, whether or not they are or were married.
The child received over half of his or her support for the year from the parents.
The child is in the custody of one or both parents for more than half of the year.
Either of the following statements is true.
The custodial parent signs Form 8332 or a substantially similar statement that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches the form or statement to his or her return. If the divorce decree or separation agreement went into effect after 1984 and before the tax year, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332.
A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to the tax year provides that the noncustodial parent can claim the child as a dependent, and the noncustodial parent provides at least $600 for support of the child during the tax year.
In addition, the only taxpayer that may claim the child tax credit is the taxpayer that takes the child as a dependent
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