Posts Tagged ‘California Child Custody’

Who Can Claim Child Tax Exemption Between Divorced Parents?

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During tax season, every exemption and deduction matters. What should divorced parents know that will help them on their taxes?

Questions arise on who will carry children on their taxes as dependants and claim the child tax exemption. First, the IRS establishes who dependants actually are. These include sons, daughters, step- or foster- children, grandchildren or other extended relatives. Dependants must also be under 19 or 24 and a full-time student and younger than the person claiming them. Permanently disabled children are also considered dependants regardless of age. They must also been living in the home and not paying more than 50 percent of their own support.

The IRS determines that the parent who has the child more than half of the year is the custodial parent and able to claim the child as a dependent and file as head of household. This parent also is entitled to earned income credit and tax credits for the child.

Since only one parent can claim a child as a dependant and receive tax benefits, parents with equal custody may alternate who claims the child as a dependant. In cases where there are an equal number of children, the parents may claim an equal number of children as dependant on each of their taxes so that both receive tax benefits. This agreement should be documented in the divorce decree or other written agreement. If an agreement isn’t in place among parents with 50-50 custody, the IRS will do a “tie breaker”, allowing the custodial parent with a higher adjusted gross income to claim the child as a dependent.

California Child Tax Exemption

On a state level, however, the custodial parent is often ordered to give the exemption to the noncustodial parent. If a noncustodial parent is allowed to claim the exemption, the custodial parent must sign Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parent) and this form must filed along with the taxes of the noncustodial parent. Also, if exemptions are an issue, it is advisable to file earlier in the year so that the other parent must prove their right to the exemption if they attempt to claim it.

Like head of household status, child care credits can only be granted to the custodial parent. If the custodial parent has a qualifying minor and incurs work-related expenses, they are able to claim this credit for a portion of those costs. On the other hand, if a noncustodial parent covers medical expenses of their children, they are able to claim deductions on those. They may also be able to deduct other child care related expenses.

The child tax credit is also based on income. The threshold is $55,000 for married couples filing separately, $75,000 for single filing as the head of household and $100,000 for married couples filing jointly. For every $1,000 of income over the threshold, child income credits are reduced by $50.

The other major question is whether child support can be claimed as a deduction. The short answer is no. There are other deductions that can be claimed as noted earlier. Are there other ways around this? To get more information, contact our offices for help.

Right of First Refusal in Child Custody Orders. What is it and is it good for me?

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What is a right of first refusal for childcare?

A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in.  The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.

The devil in the details of right of first refusal orders

As stated above, the term “right of first refusal” is a general term describing a type of order.  Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.

Common Considerations:

  1. How frequently are situations where a right of first refusal may apply going to come up?  If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
  2. Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work.  Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent.  It is important to address this particular need in crafting a right of first refusal.
  3. What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away.  To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more.  The minimum amount of time which is appropriate varies on each individual family and their needs.
  4. What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members.  Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present.  It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.

The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare.  The form language reads as follows:

Right of first option of child care.  In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made.  Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.”  – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment

While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.

Who is a right of first refusal good for?

Whether a right of first refusal makes sense for you depends on many factors.  My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.

  • If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents.  Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
  • If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
  • Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved.  Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.

Who is a right of first refusal not good for?

Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.

  • If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
  • If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
  • If the parents do not communicate well a right of first refusal will likely not operate well in practice.
  • If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
  • If the parents do not live close to each other, for practical reasons.

For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.