Jody A Miller, Attorney At Law

The following article was written by Kathy Howell, IRS Tax Senior Tax Consultant
Blog: www.oregonlive.com/business/
Can we claim our daughter and her son who live with us?
February 02, 2010, 11:06AM
Question from Jackie
January 29, 2010 at 4:23pm
Kathy,
My 21 year old daughter has a 3 year old son. They both live with us and we support both 100 percent. Can we claim her on our taxes? She does not work, receive any child support or government assistance.
Answer:  Jackie – It may be possible for you to claim both your daughter and your grandchild on your tax return. 
In order to claim a dependency exemption for both your daughter and your grandson they must qualify as either a Qualifying Child or Qualifying Relative. There is only one dependency exemption for any one person. Two people cannot claim the same individual on their tax return and that includes the taxpayer.
You can claim an exemption for a Qualifying Child or Qualifying Relative only if these three tests are met.
• You cannot claim any dependents if you, or your spouse if filing jointly, could be claimed as a dependent by another taxpayer.
• You cannot claim a married person who files a joint return as a dependent unless that joint return is only a claim for refund and there would be no tax liability for either spouse on separate returns.
• You cannot claim a person as a dependent unless that person is a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico.

There are five tests that must be met for you to claim your grandson as a qualifying child (QC). The five tests are:
Relationship – The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.  <em>A grandson meets this test.</em>
Age – The child must be under age 19 at the end of the year or under age 24 at the end of the year and a full-time student or any age if pernanently and totally disabled.  <em> Your grandson meets this test.
Residency – The child must have lived with you for more than half of the year or be related to you.  <em>You don’t really say how long he has lived with you.</em>
Support – The child must not have provided more than half of his or her own support for the year.
If your grandson does not meet the tests to be a Qualifying Child he may be a Qualifying Relative if all the following tests are met. In order to claim your daughter she must met the following tests also.
1. The person cannot be your qualifying child or the qualifying child of any other taxpayer.
2. The person either (a) must be related to you as a Relatives who does not have to live with you, or (b) must live with you all year as a member of your household. (A daughter or grandson does not have to live with you.)
3. The person’s gross income for the year must be less than $3,650. Gross income is defined as all income in the form of money, property and services that is not exempt from tax.  This would include wages and unemployment compensation. 
4. You must provide more than half of the person’s total support for the year. You figure whether you have provided more than half of a person’s total support by comparing the amount you contributed to that person’s support with the entire amount of support that person received from all sources. This includes support the person provided from his or her own funds.
 
You may find the Worksheet for Determining Support, available in Publication 17, Your Federal Income, or Publication 501, Exemptions, Standard Deduction and Filing Information, helpful in determining support provided.
You can visit www.irs.gov to order view, download or print IRS forms and publications or you can call (800) 829-3676 to have them mailed to you.

As a domestic relations attorney in Georgia, I often receive inquiries as to the rights of grandparents in that State.  Generally, theses inquiries relate to three specific situations: grandparents wanting visitation rights to grandchildren; grandparents wanting custody of grandchildren; and grandparents merely wanting power of attorney or formal guardianship to temporarily care for grandchildren.

 While it is the express policy of the State of Georgia to encourage contact between grandchildren and grandparents who have shown the ability to act in the best interest of the children, in the State of Georgia grandparents have limited rights to grandchildren.  In the case of visitation rights, a grandparent may petition a Georgia superior court for visitation rights to grandchildren only in the instance in which a custody, visitation, divorce, or termination of parental rights case regarding the children is already pending, or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent.  In such a situation, a Georgia superior court may grant any grandparent reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation. In Georgia there is no presumption in favor of visitation by any grandparent.  Grandparents in Georgia may not file an original action for visitation where the parents of the minor child are not separated and the child is living with both of the parents; parents that are married and living together have the right to deny grandparents visitation with the child.  In the case an adoption petition filed by a blood relative or stepparent, a grandparent who has already been awarded visitation rights may intervene and object to the adoption of a child, and in that case the Georgia superior court may deny the adoption or grant the adoption but continue the grandparents’ formal visitation rights.

 Grandparents in Georgia wishing to obtain custody of their grandchildren as opposed to visitation rights may file an original action for custody in Superior Court, and may be granted custody if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to the grandparent is in the best interest of the child or children and will best promote their welfare and happiness. In Georgia there is a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents, but this presumption may be overcome by a showing by the grandparent that an award of custody to the grandparent is in the best interest of the child or children. The sole issue for determination in this type of case is what is in the best interest of the child or children.  If a grandparent feels that they can show a Georgia superior court that it is in the best interest of the child that custody be removed from a parent and awarded to the grandparent, the grandparent may file a custody action regardless if the parents are married and living together.

 In the case of a grandparent in Georgia who needs to care for grandchildren temporarily with the permission of a parent but does not want formal visitation rights or custody to grandchildren, the parent may delegate to the grandparent residing in Georgia caregiving authority regarding the minor child when hardship prevents the parent from caring for the child. This authority may be delegated without the approval of a Georgia court by executing in writing a power of attorney for the care of a minor child in a form substantially complying with the laws of Georgia.  A parent may automatically terminate the authority delegated to the grandparent by notifying the grandparent by certified or overnight mail.  The authority to designate a grandparent to act on behalf of a minor child is in addition to any other lawful action a parent may take for the benefit of the minor child, and the parent shall continue to have the right to medical, dental, mental health, and school records pertaining to the minor child.  One step further in this type of case is for the grandparent to petition for formal guardianship of the grandchild in a Georgia Probate court; this is a formal, court-ordered relationship as opposed to a non-court ordered relationship.  In Georgia, formal guardianships are granted only with the permission of both living parents and they may be terminated by the filing by the parent of a request to end the guardianship and in that case the Georgia Probate Court would determine whether it is in the best interest of the child to terminate the formal guardianship.

 All visitation, custody, and guardianship cases in Georgia must be filed in the county in which the current legal custodian resides.