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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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the father of my child and i were never married. i have claimed

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the father of my child and i were never married. i have claimed my son every year. ( he is turning 5 next month) we have 50/50 custody and the father pays me child support. i would like to know who has the right the claim his this year? the father has informed me that he went ahead and claimed him without my agreement. He has a newborn and also two other kids that live with him but arent his. will i be at fault if i claim my son as well even though he already did?
-Could you explain your situation a little more?
Is there a court order for child support?
If so, is there anything in the order concerning the tax deduction?
When you say 50/50 do you mean actual 50/50 with respect to time spent with the child or does the child live with you?
Is everything with respect to the child custody and visitation a matter of a court order?
Customer: replied 3 years ago.


There is a court order for child support. It is in effect as of today ( we just went to court and signed papers on 1/30/13). There is nothing in the papers that talk about tax deductions. the custody is not court order it is a schedule we have made but i do not agree to it and we have not yet gone to court for the custody matter. it rages from 53-71 hrs a week with me. he lives at both house. The father does have 3 other children at his home only one of the other 3 is his. (newborn born in decemeber 2012). visitation or custody is not court ordered.

Dear JACUSTOMER - Private custody agreements are not enforceable and mean nothing. The general rule is that the person who has custody gets the tax deduction and as of now you have custody if he is paying the support. So you can take the deduction and you can contact the IRS and explain that the father has no custodial rights to the child and that the deduction to him should be disallowed. Unless there is something in a court order to the contrary the custodial parent gets the deduction and right now you are the custodial parent. You need to get a court order for custody as well in case the father decides to keep the child and not return him. You have nothing to enforce to get him back without a court order.

Customer: replied 3 years ago.


so if i go ahead and claim the child on taxes i will not be at fault even if he already said he filed and claimed him?

No you won't be at fault since its your right to claim him. The only problem is that if the claim is denied because of the father's claim you will have to deal with the IRS and explain the situation. It is the father's claim for a deduction that should be denied.
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