Home |IRS Tax Return | Does the custodial parent have a legal obligation to offer the non-custodial parent the opportunity to claim the child on their IRS taxes, especially if the custodial parent hasn't filed taxes in six years and wants to allow the child's grandmother to claim the dependent instead? Do the parents typically have the primary right to claim the child over other relatives, aside from the custodial parent?

Does the custodial parent have a legal obligation to offer the non-custodial parent the opportunity to claim the child on their IRS taxes, especially if the custodial parent hasn't filed taxes in six years and wants to allow the child's grandmother to claim the dependent instead? Do the parents typically have the primary right to claim the child over other relatives, aside from the custodial parent?

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Robert James, 20+ years of experience in IRS matters
Answered on September 20,2023

There's no IRS rule that says the custodial parent has to release the claim to the non-custodial parent if the custodial parent doesn't file tax returns.

However the custodial parent cannot allow anyone else to claim the child if they aren't already eligible to claim them by IRS guidelines. The child would have to live with the grandmother for at least six months of the year, and if the grandmother and custodial parent live together with the child for the same amount of time, the grandmother needs to have a higher AGI than the parent.

The only time a person can claim a child as a qualifying child for tax credits when they do not live with the child is a non-custodial parent, and they need to get Form 8332 from the custodial parent.

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