I have a 6 year old daughter and until recently, her father and I had 50/50 custody for both legal and physical. As of two years ago, the physical custody had to change because her father and I live an hour apart and she would be starting kindergarten. He and I still have joint legal but I have over 60% physical custody. From what I read and understood it to mean in our custody papers is that the parent that has over 50% physical custody has the sole right to claim the child on taxes every year, but can let the other parent claim the child if they choose to.

Not wanting to have any problems with the IRS, I want to be clear on this before I file and/or have problems with her father.

I am sure that this law varies from state to state, so I will state that I live in Southern California, and the case is in the San Diego Courts.

Any advice or answer's on this issue would be greatly appreciated.


Thank You!

The following is from the IRS website:

For taxable years beginning after December 31, 2004, section 152(e) includes no general rule allowing the custodial parent to claim an exemption for a child. It provides that a child is treated as the qualifying child or qualifying relative of the noncustodial parent if (1) the parents are divorced, legally separated, or live apart during the last 6 months of the calendar year, (2) the child receives over one-half of the child's support during the calendar year from one or both parents, (3) the child is in the custody of one or both parents for more than one-half of the calendar year, and (4) the custodial parent releases the claim to the exemption. Thus, under current section 152(e), the custodial parent's release of the claim is not an exception to a general rule, but is a condition precedent to the application of section 152(e). The proposed regulations include an example illustrating that section 152(e) does not apply if the custodial parent does not release the claim, in which case entitlement to the exemption is determined under section 152(c) or (d).

In other words, if you have over 50% custody, you must give up your right to claim her on your taxes in order for him to be able to. Federal tax laws do not differ from state to state and in general, state returns request you use the same information that was used on your federal return.

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Originally Posted by Bella619

I have a 6 year old daughter and until recently, her father and I had 50/50 custody for both legal and physical. As of two years ago, the physical custody had to change due to the fact that her father and I live an hour apart and she would be starting kindergarten. He and I still have joint legal but I have over 60% physical custody. From what I read and understood it to mean in our custody papers is that the parent that has over 50% physical custody has the sole right to claim the child on taxes every year, but can let the other parent claim the child if they choose to.

Not wanting to have any problems with the IRS, I want to be clear on this before I file and/or have problems with her father.

I am sure that this law varies from state to state, so I will state that I live in Southern California, and the case is in the San Diego Courts.

Any advice or answer's on this issue would be greatly appreciated.


Thank You!

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Have you simply tried asking your ex what his plans were or if you get along well enough maybe see who can get the most benefit from it and split the difference between you or start a collage fund for your daughter with the return.