Legal Question in Tax Law in Rhode Island

Me & my daughter's(3 years old) mother have been separated since Jan. 1 2009 & my daughter has lived with me from the day I moved out(Jan. 1 2009). Shortly after we moved out I got a court order giving me placement & custodial guardian rights but with joint custody. She has been visiting her mother every Monday & Tuesday from 9am-6pm since September 2009 & recently(november 2009) got an additional day, Wednesdays noon-6pm. When the Judge gave her this extra day he also turned her down for the modified placement order she asked for & ordered her to pay child support to me($60/week). Child support started immediately(november 2009). My question is, when she filed for tax returns, she used our daughter to receive an Earned Income Tax Credit which not only lowered my returns but also made it so that I now can't E-file but rather must mail mine in which takes 3 months as opposed to a couple weeks. On the EITC forms it asks clearly if your child has lived with you for 6 months within the past year & if you support them, financially at least 50%. Not only has our child lived with me full time over the past year but thee only financial support she has ever given is the $61/week child support starting November 2009. I AM going to pursue this matter but was wondering if anyone could give me some info/help as I'm curious if there is some way she IS entitled to the EITC & I am wrong here? Thank you


Asked on 2/23/10, 1:18 pm

1 Answer from Attorneys
Phroska L. McAlister PHROSKA LEAKE McALISTER

Notwithstanding the "joint custodial" wording of your Court Order, IF you are the custodial parent with whom your child primarily resides; & you have a Court Order to receive Child Support, from the other parent, you are entitled to Claim your child on your tax returns, in every way, UNLESS YOU signed an IRS form giving someone else that right. If you Claim your child, as indicated; (even after someone else does) and IRS audits or questions your return, your Court Order and documentary proof that you are the person who provides the primary support for your child, is likely to result in IRS deciding the matter in your favor and result in IRS disallowing the other parent's claim. In addition to the Court Documents, other documentary proofs include, but is not limited to day care & baby sitting costs & receipts; health care records, clothing, neighbors, family & friends affidavits respecting the child's residence & care. etc.,

Good luck,

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Answered on 3/01/10, 6:43 pm


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