The IRS goes by physical custody when they are stating non-custodial and custodial.
The parent who has the child more that 1/2 the year is considrred the custodial parent by the IRS
regardless of which one the court has issued as custodial parent.
Legal custody by a court is not Tax custody. The custodial parent that has physical custody by IRS
(Federal law) can claim the child unless they release the exemption to the other parent with a signed
form. The non custodial parent can then claim the exemption and child tax credit - nothing else. Without the
for the non-custodial parent can claim nothing.
A court order cannot override Federal tax law, but must be enforced by the court that issued the order by
holding the parent that refuses to issue the required
form in contempt of court with possible criminal
The physical custodial parent has the child in their custody more than 180 days/yr. They are the ones who
claim all credits and deductions for the child regardless of who the courts have awarded as the custodial
parent or as the parent that gets to claim all deductions, credits and exemptions For the court awarded
custodial parent to claim the child the physical custodial parent (IRS tax law) would have to issue the
form to the non custodial parent (IRS tax law).
The IRS will not referee divorce custody situations - they go strictly by physical custody. If the custodial
parent refuses to provide the signed
so that the non-custodial can claim according to a local court
decree the remedy is the family court that entered the order. The parent could be held in contempt but the
IRS will not get involved.
There is one exception and that is pre-2009 divorce decrees that meet the strict IRS requirements (not many
Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement
went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages
from the decree or agreement instead of
. The decree or agreement must state all three of the
1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as
payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a
The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax
* The cover page (write the other parent's social security number on this page).
* The pages that include all of the information identified in items (1) through (3) above.
* The signature page with the other parent's signature and the date of the agreement.
Post-2008 divorce decree or separation agreement. The noncustodial parent cannot attach pages from the
decree or agreement instead of
if the decree or agreement went into effect after 2008. The
custodial parent must sign either
or a similar statement whose only purpose is to release the
custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his
or her return. The form or statement must release the custodial parent's claim to the child without any
conditions. For example, the release must not depend on the noncustodial parent paying support.
Attach this form or similar statement to your tax return for each year you claim the exemption for your
child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet
Child Support and Taxes: Non-Custodial Parent FAQs
Child custody arrangements and income are significant factors in determining both child support award
amounts and income tax return obligations. Since custody, income, and child support are closely connected,
child support responsibilities can affect a non-custodial parent’s tax returns. This article answers some
frequently asked questions about how child support payments can impact a non-custodial parent’s Internal
Revenue Service (IRS) tax filings.
How does income affect child support orders?
When establishing a child support order, a judge generally must follow specific state guidelines. Those
guidelines are “income driven,” meaning the support amount is determined primarily by the income of the
parties. It's important for parents to understand what funds, (beyond simple wages and salary) are
considered "income" under the child support guidelines. For example, the income of a new spouse, to the
extent that income directly reduces the expenses of the custodial parent, is considered income for child
Does the IRS consider child support to be income?
No. Although there is a relationship between child support and taxes, the IRS doesn't consider child support
payments as taxable income. That means taxes for non-custodial parents who pay child support can't include
deductions for the child support payments and, on the flipside, child support payments do not count as
taxable income to the payee (custodial parent). The bottom line: when calculating your gross income to see
if you're required to file a tax return, don't include child support payments made or received.
affect the Child Tax Credit?
Yes. Certain individuals may claim a tax credit for their dependent children. Only the parent using the
dependency tax exemption can claim the Child Tax Credit. A custodial parent may use
to release the
exemption to the non-custodial parent. In that case, the non-custodial parent would qualify for the
dependency exemption and therefore the Child Tax Credit.
Refer to the Instructions for Form 1040 or the Instructions for Form 1040A index for Child Tax Credit for
further details about qualifications and calculations.
If the non-custodial parent receives permission from the custodial parent to claim a child on his or her tax
return, is the non-custodial parent eligible for the Earned Income Credit?
Probably not. The
Earned Income Credit (EIC)
is a tax credit for people who work and earn income below a
certain amount. There are particular rules a person must meet to be eligible for an
. Some parents may be
able to receive an EIC if they have a “qualifying” child. Generally, non-custodial parents cannot claim the
EIC on the basis of their children because the children do not live with that parent and consequently do not
meet the residency test. If the custodial parent meets other requirements, he or she may be able to claim
Get Help with Your Child Support and Taxes Questions
Whenever taxes and child support mix, it is usually a complicated situation -- whether you're a custodial or
non-custodial parent. If there's a large sum of money involved, you're almost certainly better off speaking
with a professional. If you need help knowing where to begin or are looking to hire legal counsel, find a
family law attorney near you with experience in such matters.