IRS and claiming child

[MISHELLE]

Soc,
 
 I am in the middle of child custody/visitation case right now, evidenciary hearing coming soon,  Bm is asking for attorneys fees and were sure she will ask for more child support once I turn in Income and expense decs. however I have the feeling that her parents have been claiming him on there  taxes, my attorney wants me to try to find out.

1. will the IRS tell me who is claiming my child?
2. can this help my case?

thanks
 mish

[socrateaser]

>1. will the IRS tell me who is claiming my child?

You can request that the other parent produce a signed copy of her tax return, or in the alternative, that she execute the necessary IRS form to permit you to examine her return at the nearest IRS office, or that she execute the necessary IRS form to permit you to receive a transcript of her return, which is a computer generated list of the numbers and check boxes, but it is NOT an actual physical copy of the return.

This would tell you if the mother took the exemption. Obviously, if both mother and grandparent took the exemption, it would trigger a letter from the IRS and someone would get hit with the penalty and taxes, so I doubt that both would take the exemption.


>2. can this help my case?

Well, on it's face it would be federal tax fraud for the grandparents to take the exemption unless the child lived with the grandparents for the entire tax year, but that's not necessarily going to help you.

However, if the grandparents are the actual persons who are supporting the child, then that would mean that the mother is not exercising custody, and unless she is actually turning her support money over to the grandparents, then she would be diverting support to her personal use and THAT would be contempt. It would also mean that a substantial change in circumstances affecting the child's best interests would have occured, in that the mother is not exercising custody, and that would get you a new custody hearing.

There are a load of twists and turns here, but the short answer is that it could help your case.

[MISHELLE]

Soc,,
 forgot to ask...
            Ok.. so Bm lives with her parents, she received Welfare from 1994 until 2001, she worked from 2002-2003 then from 2003-2004 she was on disability, she has now returned to work. In past character decs to the courts her parents have written about how they have had the burden of financially supporting the child due to father not paying enough child support. (even though mother was on welfare and mother had to assign her right to support over to state of California)
    1. While she received welfare could she let her parents claim child, or is that welfare fraud?
    2. Since receiving disability for the last year she cannot file taxes,can she let her parents or does this fall under her not exercising her custody?
thanks for any insight.
mish

[socrateaser]

>    1. While she received welfare could she let her parents
>claim child, or is that welfare fraud?

CA DHHS is not damaged by whether or not a recipient files for a federal tax exemption, so no welfare fraud.

>    2. Since receiving disability for the last year she cannot
>file taxes,can she let her parents or does this fall under her
>not exercising her custody?

Absent an express award of the dependency exemption, via a court order, a parent can't give away their child's dependency exemption, except to the other parent, and then only by signing IRS Form 8223.

However, the grandparents can take the exemption assuming that they meet the requirements, i.e., child and/or grandchild live with grandparents for more than 50% of the year.

I'm not really sure what you're trying to prove or why. Why don't you post all the facts of your case and maybe I will have an idea.

[MISHELLE]

well hmm where to start,
 basically dh is in the process of a mod of cust and visitation, asking for gradual increase to 50/50, bm is asking that  all visitation decrease "because the current schedule doesnt work for her" however she is asking for attorneys fees and we are sure she will seek a mod in child support as she says that she does not make enough money to pay attorney or support her child. (she has only worked a total of 1 year in the 9 1/2 years of childs life.welfare 7 years and disability for 1 1/2)
 
1.how can she ask for more support, if her parents are claiming that they are financially responsible for child thus claiming child on there taxes.??
sorry if my ?? are confusing..
mish

[socrateaser]

>1.how can she ask for more support, if her parents are
>claiming that they are financially responsible for child thus
>claiming child on there taxes.??

Child guideline support in CA is based upon each parent's income (or earning capacity) and the parent's relative amount of physical responsibility for the child. As you may be aware, the formula is sufficiently complex that no one can reasonably calculate support without appropriate computer software which must be certified by the California Judicial Council.

The point here is that a parent who is not physically responsible for his/her child(ren), must generally pay support based on his/her earnings REGARDLESS of the amount of income or assets of the custodial parent.

So, what you may be able to show, by demonstrating that the grandparents have claimed the child as a dependent, is that the mother takes no physical responsibility for the child, and therefore she cannot be awarded support, under CA.

You may also be able to show, that, it is in the child's best interests to be placed with you as primary custodian, in as much as the grandparents have effectively seized custody of the child without a court order.

As a practical matter, I could see the court asking if the grandparents wish to be joined in the action for the purpose of seeking custody and support, and at that point, the child's mother would be out of the picture, and you will be fighting with the grandparents only.

Whether you would prevail in such a circumstances would depend heavily on how long the current status quo has existed. If the grandparents have been exercising de facto custody for more than six months, I'd say that, unless the child expressed a strong desire to reside with you, that the grandparents would be awarded custody, and you would be paying them.

Not what you wanted to hear, I'm pretty certain, but very possible. Your only leverage would be that if you have considerably more assets than the grandparents, then you could engage in a very expensive custodyt battle, and the grandparents might just say, "Whoa...fagetaboutit!"

Absent that, I don't like your chances, and I suggest that you find a negotiated settlement.