We received physical custody of all children on July 15th. She had physical custody before then, however she never worked and survived solely on the support that we paid her. She has not paid any child support since we received custody mostly because she did not get a job until the end of November. We may file for Child Support but were told to wait and make sure she kept the job. She has always let me husband claim the children because she has never worked in the past. Since we were the sole support of the children when they lived with her and then received physical custody in July can we file a return also and let the IRS decide it.

The more sensible plan would be to go back to the Court that issued the support order and ask that this be clarified - and made permanent.

It seems that the children spent more nights at the mother's house (Jan - July) than at the father's (July - December). So, absent a court order that says otherwise, the mother has the right to claim the children as her dependents this year, based on this residency test.

Ebaines, I believe an argument could be made that the husband meets the support requirement (provides more than half of the total support for the children).

That being the case, I would have him claim the children.

However, simple coordination (a call to the mother to make sure she does NOT claim the children) would keep this situation from becoming a problem with the IRS.

ATE: the guidelines say that custodianship outweighs who provides financial support. From pub 501: "if both parents claim the child as a qualifying child, the IRS will treat the child as a qualifing child of the parent with whom the child lived for the longer period of time during the year." In this case the child could be claimed as a qualifying child by both parents, so why wouldn't the mother win out?

I do agree however that it's better for two responbsible adults to work this out without having to involve the IRS.