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When my husband divorced, he and his ex were given joint managing conservatorship of their son. It was not stipulated in the divorce decree who would get to take him as a deduction, but for '97 thru '99, his mother took the deduction. In 11/99, the boy committed a crime and was sentenced to a juvenile facility, which is where he was the entire year of 2000. My husband's child support was mandated to be paid to the state juvenile facility, but the boy's mother was not court-ordered to provide any support.

Since there was never an order of who had custody, custody is determined by physical custody. There are two ways of looking at physical custody of your stepson during 2000. If the incarceration is viewed as a "temporary absence," the ex would have physical custody, and she would be entitled to the exemption. If not, neither parent had physical custody, and the standard support test applies. Thus, whoever paid more than half his support for the year is entitled to the exemption.

All this is just sort of thinking out loud, because I don't know if there are any rulings directly on point. If you want to pursue it, I'd suggest getting in touch with the juvenile authority to see what the cost for one inmate is for a year. I suspect they're going to tell you it's more than twice what your husband paid in support, in which case no one gets the exemption for 2000.

Phil Marti
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