Legal Question in Family Law in Oregon

The IRS rules for determining which parent qualifies as the "custodial parent" are set forth in IRS Regulation 1.152-4.

IRS Regulation 1.152-4

In sum, the custodial parent is the parent with whom the child resides for the greater number of nights during the calendar year (the counting nights rule). A child resides for a night with a parent if the child sleeps (1) at the parent�s residence (whether or not the parent is present), or (2) in the company of the parent when the child does not sleep at a parent�s residence (for example, if the parent and child are on vacation). Under this rule, the time that a child goes to sleep is irrelevant.

Further, under the counting nights rule, the parent who cares for the child at night is the custodial parent although the other parent may spend more time with the child. A child who resides with neither parent for a night is treated as residing with the parent with whom the child would have resided for the night but for the absence. However, if a child would not have resided with either parent (for example, because a court awarded custody of the child to a third party for the period of absence), the child is treated as not residing with either parent for the night of the absence.

A special exception is provided for a parent who works at night. Specifically, if the child resides for a greater number of days but not nights with a parent who works at night, that parent is treated as the custodial parent. On a school day, the child is treated as residing at the primary residence registered with the school. A night that extends over two taxable years is allocated to the taxable year when the night begins. Thus, the night that begins on December 31, 2012, is counted for taxable year 2012. A child is treated as residing with neither parent if the child is emancipated under state law.

Lastly, if the child resides with each parent for an equal number of nights during the calendar year, the parent with the higher adjusted gross income for the calendar year is treated as the custodial parent (the "tie-breaker" rule).

LAWRENCE D. GORIN

http://ldgorin.justia.net/index.html

Law Offices of L.D. Gorin

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Beaverton, Oregon 97008

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