Legal Rights to Child

[JackieCPA]

Hi!

I have a tax client who is unmarried. Lives with his girlfriend and their child. Generally, he claims them both the girlfriend and the child because the girlfriend doesn't work. For 2021, she had about $4,900 of income, so he isn't going to claim her. For the child, it is his biological child, but the girlfriend called me and said that he doesn't have any legal rights for her.

Does he still get to claim the child? All I find is the tie-breaker rules, with those he does get to claim the child. However, with the fact that he is the biological father but has no legal rights towards the child. Is she technically the custodial parent then and he would have to get a Form 8332 from her in order to claim the child? 

I haven't had the situation before where they all live together and he is the biological parent. But I guess when the child was born he gave up the legal rights for an unknown reason. 

[Patrick Michael]

If all the three lived together for the entire year then he can claim the child.  Per IRS (https://www.irs.gov/faqs/filing-requirements-status-dependents/dependents/dependents-3) Generally, the child is the qualifying child of the custodial parent. The custodial parent is the parent with whom the child lived for the longer period of time during the year.  No 8332 required since she is not giving up claiming the child.  If they both claim the child it will come down to the tie breaker rules.

[Lee B]

"An unmarried father does not have legal rights to custody or visitation."

In most states unmarried fathers do not have these legal rights.

I don't think this has anything to do with claiming dependency.

[Pacun]

I would be careful with the vacations away from home. If he took a couple of days of vacation in 2021 and the child was left behind with the girlfriend, she will win the tie breaker. 

As long as the child is blood related, he can claim the child. 

If every single night of 2021 they all slept under the same roof, then the parent with the most income would win the tie breaker, which is your client in this case.

[TexTaxToo]

In this case, tiebreakers do not come into play unless they both claim the child on their returns.  In any case, I don't think vacations would affect anything as they are considered temporary absences as far as residency is concerned.

[DANRVAN]

 

21 hours ago, TexTaxToo said:

In this case, tiebreakers do not come into play unless they both claim the child on their returns.

And in this case it would go to the father per section 152(c)(4)(B).

[Pacun]

22 hours ago, TexTaxToo said:

In this case, tiebreakers do not come into play unless they both claim the child on their returns.  In any case, I don't think vacations would affect anything as they are considered temporary absences as far as residency is concerned.

If you read the original post, the mother is saying that the father doesn't have any "legal rights to the child" and the poster wants to have the father claim the child, most likely both want to claim the child and the tie breaker rules will apply. 

Nothing is "temporary" when counting the nights where the child slept.  You count the nights the father slept under the same roof with the child vs the nights the mother slept under the same roof with the child. AND as you know that's the first rule.... whoever wins that one, wins the goodies.

[DANRVAN]

38 minutes ago, Pacun said:

  You count the nights the father slept under the same roof with the child vs the nights the mother slept under the same roof with the child.

 Sleeping under same roof every night is not a requirement.  What counts is where the child or parent resided, or would have resided during a temporary absence.  

See section 152(c)(4)(B) and reg 1.152-4(d)(3) for clarification.

 

 

 

[kathyc2]

How about calculating pro forma returns?  Two for each; one where they claim child and one where they don't.   Hopefully, they can then agree which return should have the child on it.

[JackieCPA]

This was insightful - thank you for the responses.