Which divorced parent can claim the child?

The rule in one paragraph

The publication begins with the default: because of the residency test, a child of divorced or separated parents is in most cases the qualifying child of the custodial parent. The custodial parent is defined by nights, not by court labels or who pays more. It is the parent with whom the child lived for the greater number of nights during the year; the other parent is the noncustodial parent. If the parents split during the year and the child lived with both beforehand, only the nights in the rest of the year decide.

How nights are counted

A child is treated as living with a parent for a night if the child sleeps at that parent’s home, whether or not the parent is present, or in the parent’s company when the child is not at a parent’s home, such as on a shared vacation. The night of December 31 counts toward the year in which it begins. If a child was with neither parent on a particular night, for example at a friend’s house, the child is treated as living with the parent the child normally would have lived with that night. Summer camp is handled the same way: the publication’s example treats six weeks of camp as three weeks with each parent when the child alternates weeks.

Equal nights and unusual schedules

If the child lived with each parent for an equal number of nights, the custodial parent is the one with the higher adjusted gross income. In the publication’s example the child spent 180 nights with each parent, one parent had AGI of $40,000 and the other $25,000, so the higher-income parent is the custodial parent. A parent who works nights and so has the child more days than nights is treated as the custodial parent, and on a school day the child is treated as living at the primary residence registered with the school. An emancipated child is treated as living with neither parent from the emancipation date, which can shift the count or end the special rules.

When the noncustodial parent can claim the child

The child is treated as the noncustodial parent’s qualifying child if all four of these are true. The parents are divorced or legally separated under a decree, separated under a written agreement, or lived apart for the last six months of the year. The child got over half of the year’s support from the parents. The child was in the custody of one or both parents for more than half the year. And the custodial parent signs a written declaration not to claim the child, which the noncustodial parent attaches to the return. The next two pages cover that release: Form 8332 and the child tax credit.

Worked example

The publication’s first example: the child lived with you 210 nights and with the other parent 155 nights, so you are the custodial parent. Change the facts: after separating in July, the child lived with you 90 nights and with your ex-spouse 95 nights between July and December. Only those later nights count, so your ex-spouse is the custodial parent despite the earlier months together. Enter your own counts above. With equal nights, also enter both AGIs.

Parents who never married

The publication says the divorced-parent rules also apply to parents who never married and lived apart at all times during the last six months of the year. It also says that if you remarry, support provided by your new spouse is treated as provided by you. Alimony payments that are includible in the recipient’s income are not counted as payment for the support of a dependent.

Limits of this page

This page applies Publication 504’s custodial parent definition. It does not decide the other dependency tests (relationship, age, support, joint return) found in Publication 501, nor the separate head of household and credit rules. See the head of household checker for that filing status.

Sources

• IRS Publication 504, Divorced or Separated Individuals (2025): Children of Divorced or Separated Parents (or Parents Who Live Apart), including Custodial parent and noncustodial parent, Equal number of nights, Absences, Parent works at night, Emancipated child and Examples 1 to 6. Read November 2, 2026.

Edition read: Publication 504 (2025), for use in preparing 2025 returns. Dollar limits and dates in this publication are for 2025; check the current publication and form instructions for your tax year. This page summarizes the publication and does not replace it.