The mother of my niece abandoned her at two months old and left her with no plans of support. My niece is now two years old and I have been supporting her this entire time. I never went through a family law attorney to get legal custody. The mother of the child has filed taxes and claimed her as her dependent, but has never had physical custody of her or provided any support. When I went to the IRS they said my niece was already claimed. I'm going to go through a process in order to prove that she is my dependent. Can I get child support from her since she has not provided any since the baby was two moths old? What rights do I have?
I will address the IRS issue only. Since your niece lives with you and you are providing all of her suppot you, not her monther, are entitled to the exemption. You need to appeal the IRS decision to disallow your claim and prove that you are supporting her through your financial records and whatever documentation you have showing she lives with you (i.e. doctor bills with your address on it). If you have any difficulty go to the IRS Taxpayer Advocate. You can reach the advocate at 877-777-4778. See IRS Publication 501 for more information on taking the exemption for tax purposes. This would also enable you to file as Head of Household if you are currently single. Good luck.
Marty Davidoff, [email protected], 732-274-1600. This answer is provided for general information only. You should seek advice from an attorney or tax professional.
First, let me say that you have a done a wonderful ting by providing for and supporting this child for the past two years. Based on the efforts you have made so far many things weigh in your favor, however please realize that by commencing a journey to get child support from the parents (where is the father, by the way) you arrive at an uncertain destination.
To determine child support obligations, the Division of Child Support is going to look at the custody arrangements. In your case, it appears you have an informal custody arrangement. By seeking child support under such conditions, the Department of Human Services / Child Welfare will likely get involved to establish a "permanency plan" for the child. The investigating social worker would interview family members, neighbors, teachers, etc. If the investigation found the minor child was being neglected and/or abused the case would be referred to the court for further action. Ultimately, the child could be returned to either parent, the aunt could be awarded temporary or permanent guardianship; or the minor could be made a ward of the state and placed in a group or foster home, another relative's home or whatever the court believed to be the most appropriate. If you are made the permanent legal guardian of the child, you may very well be eligible for guardianship assistance benefits from the state, then the state will attempt to recoup some of these benefits from the child's parents.
You could also seek to adopt the child.
Either of these paths is much easier with the consent and cooperation of the birth parents.
To best protect your rights, you probably should consult with an attorney before starting either of these journeys.
Disclaimer Information on this site is provided by Brian Scott Wayson as general information, not legal advice, and use of this information does not establish an attorney-client relationship. If you have questions about your specific situation, please call an attorney.
First and foremost if you plan to continue to care for this child it is important that you establish a legal claim to do so. This can be accomplished, but a custody case is fact dependent beyond the information given in your question. As part of gaining legal custody you can also establish a support order.
The IRS does allow someone who is not a parent to claim a child as a dependent. You must qualify to do so. The IRS sets forth the qualifying factors in Publication 504, available online. Even if you do not qualify for the dependent exemption you may qualify for the Earned Income Tax Credit.
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