In general, the custodial parent claims the child for tax purposes. If the court does not make any orders about the tax deduction, then the custodial parent automatically claims the child as a dependent for tax purposes.  The income tax rules say that the parent having custody for a greater portion of the calendar year receives the deduction.  This is an IRS rule.

A court, can, however, order that the non-custodial parent be allowed to claim the child for tax purposes. The court will order the custodial parent to sign the proper IRS forms to allow the non-custodial parent to claim the child for tax purposes. If the court orders the non-custodial parent to claim the child on taxes, that parent can claim the child as a dependent only if that parent is 95% current on his child support for that tax year.

The court may consider several factors when deciding whether to grant the non-custodial parent the tax deduction, including:

  • Whether the non-custodial parent will be paying the majority of the support for the child.
  • The incomes of the parties.
  • The tax consequences for each parent.

The court could hold the custodial parent in contempt of court for refusing to follow a court order. The court could also lower the non-custodial parent’s child support payment based upon the extra taxes the non-custodial parent would have to pay without the child deduction.

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Indiana Legal Services, Inc. (ILS) is a nonprofit law firm and the largest provider of free civil legal assistance to eligible low-income people in Indiana. ILS helps clients who are faced with legal problems that harm their ability to obtain basic needs such as food, shelter, income, medical care or personal safety. ILS also handles cases in other areas including family law where there is domestic violence, housing, consumer law, access to health care, and access to government benefits. ILS does not handle any criminal matters.