Only the parent who has custody more than half the nights of the year can claim the tax credit for child and dependent care expenses or use a flexible spending account (FSA) to pay for child care.
That tax benefit cannot be waived, transferred, or shared with the other parent even by a court agreement.
How To Know Which Parent Can Claim The Child On Taxes Each Year
- If you are following the law, only the parent who had physical custody more than half the nights of the year (184 or more nights) can claim the dependent care credit.
- The IRS does not respect most court orders about custody, they make the determination based on where the child sleeps the most number of nights. If that is you, you are the “custodial parent” for tax purposes.
- The custodial parent is automatically entitled to all the tax benefits of claiming a dependent—dependent exemption, child tax credit, dependent care benefit, and qualify for head of household filing status. The non-custodial parent gets nothing without the custodial parent’s approval.
If you have an agreement that says the other parent can claim the dependent in certain years, the custodial parent needs to give the other parent a signed form 8332 (dependent release) for that year.
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