I can address this from an IRS level. Texas may have a different answer for state taxes and you should consult a Texas attorney if you are asking from a state level.
There is a huge difference between a guardian for a child and someone who can claim the child as a dependent.
The Working Families Tax Relief Act of 2004 set a uniform definition of a qualifying child, beginning for Tax Year 2005. This standard definition applies to all five of the tax benefits noted above, with each benefit having some additional rules.
In general, to be a taxpayer’s qualifying child, a person must satisfy four tests:
* Relationship – the taxpayer’s child or stepchild (whether by blood or adoption), foster child, sibling or stepsibling, or a descendant of one of these.
* Residence – has the same principal residence as the taxpayer for more than half the tax year. Exceptions apply, in certain cases, for children of divorced or separated parents, kidnapped children, temporary absences, and for children who were born or died during the year.
* Age – must be under the age of 19 at the end of the tax year, or under the age of 24 if a full-time student for at least five months of the year, or be permanently and totally disabled at any time during the year.
* Support – child did not provide more than one-half of his/her own support for the year.
If a child is claimed as a qualifying child by two or more taxpayers in a given year, the child will be the qualifying child of:
* the parent;
* if more than one taxpayer is the child’s parent, the one with whom the child lived for the longest time during the year, or, if the time was equal, the parent with the highest AGI;
* if no taxpayer is the child’s parent, the taxpayer with the highest adjusted gross income (AGI).
While the four qualifying child tests generally apply for the five tax benefits noted above, there are some additions or variations for particular provisions:
Dependent – a qualifying child must also meet these tests:
* Nationality – be a U.S. citizen or national, or a resident of the U.S., Canada or Mexico. There is an exception for certain adopted children.
* Marital status – if married, did not file a joint return for that year, unless the return is filed only as a claim for refund and no tax liability would exist for either spouse if they had filed separate returns.
Credit for Child and Dependent Care Expenses – a qualifying child must be under the age of 13 or permanently and totally disabled. A qualifying child is determined without regard to the exception for children of divorced or separated parents and the exception for kidnapped children.