Typically, the child tax credits are negotiated between the parties and ought to be in the separation agreement and / or the parenting plan you have submitted to the court.
R.C. § 3119.82 governs how the court should decide who gets the deduction.
"When issuing or modifying child support order, court must designate which parent can claim the children for tax purposes.
1. If parties agree, then court is to accept their agreement" (as I stated above).
"2. If they do not agree, the court can designate the non custodial parent only
(a). In best interest of children; or (b). If child support payments are “substantially current” in the year, the children will be claimed."
3. Court also must consider
a. Any net tax savings;
b. Financial circumstances of parents and children;
c. Amount of time each parent has the children;
d. Eligibility of earned income tax credit; and
e. Other relevant factors.
4. If non custodial parent is awarded the right to claim the children, custodial parent is ordered to cooperate to take “whatever action is necessary to assist other parent in claiming the children.
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For a discussion of how these matters can be handled please read Divorced Or Separated Parents: Claiming Children As Dependants at the following link: http://www.sjfpc.com/Dependency_Exemption_Divorced_Separated_Parents_Form_8332.html.
Hope this helps.
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I Agree with Attorney Kotler. There are several factors that the court would have to consider in order to determine which parent would be allowed to claim the child tax exemption. If you and your husband can come to an agreement, which in most cases, each spouse will alternate years, then the judge would enforce that agreement. In most cases where both parties are employed, the IRS grants the right to claim the child tax exemption to the custodial parent, absent a court order or an agreement in writing by the custodial parent to the noncustodial parent granting the right to claim the child tax exemption.
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