How do you determine who can claim a child as a dependent when the parents get an equal number of overnights with the child?
While I am not licensed to practice law in your state and cannot give you legal advice, I can give some general observations on this issue based on the jurisdiction where I practice.
Where I do practice in Pennsylvania, the IRS generally recognizes that whoever has the most overnights with the child gets to claim the child as a dependent on his or her federal tax return. When the child is with each parent for an equal number of nights—i.e. 181-182 nights per year for each parent—the custodial parent is determined to be the parent with the higher adjusted gross income. The IRS has guidelines to determine the calculation of the amount of overnights as well as gross income.
The IRS recognizes the individual with the most overnights as the custodial parent and will not allow another to claim the child as a dependent, unless the parents negotiate otherwise and IRS Form 8332 is executed by the parent with the most overnights (or if there are equal overnights, the parent with the higher adjusted gross income).
Yet also realize that for purposes of claiming a child as a dependent on a state tax return, your state may or may not deviate from the IRS.
Remember, I am unable to provide you with anything more than divorce tips, so please consult a domestic litigation attorney in your jurisdiction to obtain specific advice as to the laws in your state and how they impact your potential case.
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Pennsylvania divorce lawyer William J. Phelan, IV, contact Cordell & Cordell.