Question

If I have custody of children whose father I never married, can I claim them as qualifying children?a

Forum|Forum|2 years ago
January 21, 2024
2 replies
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My ex-fiance and I have 50/50 custody of our three children. The oldest two are not biologically mine, and as their father and I never married, I’m not sure what the legal term for the IRS would be. Our custody papers state that in odd-numbered tax years, I get to claim one of my non-biological children, but can I claim him as a qualifying child? I don’t know if he’s technically my “stepchild”, but I was granted custodial rights by the court.

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TomD8

Employee

The easiest way to determine whether or not you can claim someone as a dependent is to use this IRS online tool:

https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent

**Answers are correct to the best of my ability but do not constitute tax or legal advice.

S

SupersaiyashAuthor

This is where I get stuck. I don’t know if they qualify as stepchildren if we weren’t married but I have joint custody. I mean foster children qualify and that’s a court placement but it’s just murky as all get out.

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TomD8

Employee

Here's the legal definition:

A stepchild is a child born to or legally adopted by your spouse before your marriage whom you have not legally adopted.

https://www.law.cornell.edu/wex/stepchild

In order for a dependent to be claimed on a federal tax return, they must meet the IRS criteria - regardless of rulings by a local court.

**Answers are correct to the best of my ability but do not constitute tax or legal advice.

Carl11_2

Employee

Just to clarify in support of what others are saying here. The IRS is not bound by any court document you may have from a state court or lower. Only a federal judge can over-rule the IRS. Since federal judges don't handle custody cases, I'm quite confident in saying that will never happen.

You have to qualify under the IRS rules in order to claim dependents, regardless of what any state level or lower legal authority may say.