tax credit for child

[futurestep-mom_AZ]

Hi- thanks in advance for taking the time

All parties in the state of AZ this is all pro per

Recently (10-22-04) there was a change of custody from mom having sole with 50/50 visitation to dad has joint legal and mom receives EOW supervised visitation.

The Judge did not adress child support and although the order to stop wage assignment was filed with the request for change in custody it was never signed by the judge. Dad is only ordered to pay $23 per month. When that order was done mom received the tax allocation for every year.

Now dad has had the child for 8.5 months of 2004 and wants to claim the child. But the last order gives mom the right every year.

Mom has not earned any income all year, she has received state aid/ CS from both this dad and another and student grants she owns a home but no payments have been made since feb 2004 (included because I don't know if this changes her filing ability.

My questions are:

1. Can just a motion be filed to request that dad have the tax deduction for 2004? ( as I understand it a motion can be done without a hearing)

2.  If dad can get mom to sign an agreement for him to claim and the agreement is filed could that be considered sufficient for the Court?

3. I printed up the tax form that releases the right to claim to the NCP but it requires the CP to sign over for the NCP but now dad is the CP and is afraid using that form would allow mom to say dad still recognizes her as CP.

Thank you in advance

[socrateaser]

1. Do your current court orders award the tax exemption to the mother?

2. Did you have actual physical custody of the child for more than 1/2 of the 2004 tax year?

If #1 is yes, then you must file a motion to modify support, or, if the parents agree on the exemption, a motion for entry of stipulated order.

If #1 is no, then if the mother signs IRS form 8332, then you get the exemption and no court action is required.

If #1 is no and mother won't sign, then you must file a motion to modify support, UNLESS you have had and can prove actual physical custody of the child for more than 1/2 of 2004 tax year, in which case, you can simply take the deduction, and if you file before the mother, then it will be up to the mother to prove to the IRS that she is entitled to the deduction, because the gov will give it to the first parent who files for the exemption, and then send an audit letter to the other parent if he/she files later.

[futurestep-mom_AZ]

Yes the most current CS order awards the deduction to Mom. I hope mom will agree and he can file the motion for entry of stipulated order. If not I guess he goes to Court.
 
Question #1

If she won't agree does it seem unreasonable that dad request both parties to be stopped from filing until the issue is resolved (obviously before 4-15-05 but it can't be done w/o agreement defore 1-1-05)?

He can prove he has had the child full time since August (through school records) and that there was an order before that awarding 50/50 visitation and there were never any contempt charges so 1/2 of the first 7 months of 2004 only proof is no non-compliance reports and full uninterrupted custody (minus eight days) since 8-1-04 proven through perfect school attendance.

He is worried that if he files and claims the child that mom will file contempt even though by the 5 test by IRS she can not qualify to claim the child BUT she has a Court order that she gets the deduction every year.

Question #2

In your opinion can this happen?

Really all this SEEMS simple I know but this judge didn't WANT to take a baby (five years old) from mommy but had a forced hand b/c of the results of the drug test. So going back in front of the judge and asking for a "benefit" to the new order would be like walking into judges chambers and raking nails down his chalkboard.

Thanks in advance again.

Question #3

I have other questions to and although I read the instruction if I want to switch to a visitation issue should I post again or keep going on this thread?

[socrateaser]

>Question #1
>
>If she won't agree does it seem unreasonable that dad request
>both parties to be stopped from filing until the issue is
>resolved (obviously before 4-15-05 but it can't be done w/o
>agreement defore 1-1-05)?

Well, it seems reasonable, however, I doubt that the court would issue a restraining order, because, even if you eventually prevail on the issue, you are not irreparably harmed by the other party filing for the deduction, because the government will refund your money, even though it hasn't collected yet from the other parent.

>He is worried that if he files and claims the child that mom
>will file contempt even though by the 5 test by IRS she can
>not qualify to claim the child BUT she has a Court order that
>she gets the deduction every year.

That's an interesting argument, but, it doesn't matter. Order awards right to exemption to mother. If father claims, that's contempt. Don't Judge would probably say di minimis violation. Everyone get out.
>
>Question #2
>
>In your opinion can this happen?

Judge is not gonna change custody again over a support issue.
>
>Question #3
>
>I have other questions to and although I read the instruction
>if I want to switch to a visitation issue should I post again
>or keep going on this thread?

new thread
>
>

[futurestep-mom_AZ]

Thank You for the advice.

I hope mom will just sign a stipulated order when and if we can get a hold of her (which will lead me to the next thread)

I hope you don't mind but when I type up the stipulated order I will post here to be sure I covered all bases.

Thanks again