Custodial Parent
The IRS defines the “custodial parent” to be the parent with whom the child resides for the greater number of nights during the year. A child resides with a parent for a night if the child sleeps at the residence of that parent (whether or not the parent is present) or in the company of the parent when the child doesn’t sleep at the parent’s residence, such as when the parent and child are on vacation together. The time that the child goes to sleep is irrelevant. Provisions for special circumstances include:
• Absences of Child - If a child is temporarily absent from a parent’s home for a night, the child is treated as residing with the parent with whom the child would have resided for the night. A night is not counted for either parent if the child would not have resided with either parent for the night (for example, because a court awarded custody of the child to a third party for the period of absence), or it cannot be determined with which parent the child would have resided for the night.
• Equal Number of Nights - If a child resides with each parent for the same number of nights, then the parent with the higher AGI for the year is treated as the custodial parent.
• Night Spans Two Years – A night that extends over two tax years is allocated to the tax year in which the night begins. Thus, the night that begins on December 31, 2023, is counted for taxable year 2023.
• Parent Works at Night – If, due to a parent’s nighttime work schedule, a child resides for a greater number of days but not nights with the parent who works at night, that parent is treated as the custodial parent. On a school day, the child is treated as residing at the primary residence registered with the school.
Example 4: Hector and Jana are the divorced parents of Claudia. Claudia generally resides with Hector during the week and with Jana every other weekend. Claudia resides with Jana in Hector's residence for 10 consecutive nights while Hector is hospitalized. Under Regs Sec 1.152-4(d)(1)(i) Claudia resides with Hector for the 10 nights.
-
Example 5: Karl and Lisa, who are separated under a written separation agreement, are the parents of Charles. In August 2022, Karl and Charles spend 10 nights together in a hotel while on vacation. Under the regulations Charles resides with Karl for the 10 nights that Karl and Charles are on vacation.
Example 6: Oscar and Pam, who never married, are the parents of Cora. In 2022, Cora spends alternate weeks residing with Oscar and Pam. During a week that Cora is residing with Oscar, he gives Cora permission to spend a night at the home of a friend. The night Cora spends at the friend's home is treated as a night that Cora resides with Oscar.
Example 7 : Same facts as in Example 6, except Cora also spends 6 weeks away at summer camp. Because she resides with each parent for alternate weeks, Cora would have resided with Oscar for 3 weeks and with Pam for 3 weeks of the period that she is at camp. Cora is treated as residing with Oscar for 3 weeks and with Pam for 3 weeks.
Example 8: Same facts as in Example 7, except that Cora does not spend alternate weeks residing with each parent, and it cannot be determined whether Cora would have resided with Oscar or Pam for the period she was at camp. Therefore, she is treated as residing with neither parent for the 6 weeks.