Can you give custody with a Power of Attorney? NO.

The law in Tennessee provides that a parent may delegate "care-giving authority" to any person residing in Tennessee, when either of these hardships are about to occur:

A.   Serious illness or incarceration

B.   a physical or mental condition which makes you unable to care for the minor

C.   the minor's home is lost or not able to be lived in because of a natural disaster.

This power of attorney has to be signed by the parent before a notary and two witnesses.

Now, please note what this power of attorney does NOT do.  It does not grant custody to the party who receives the power of attorney.  In fact, the power of attorney can be terminated by a court upon granting a different legal guardian or custodian of the children.  If either of those things are about to occur, make sure that you know what your intentions are. If it is to give a person control over the affairs of the children, then a power of attorney may work; but, if your intention is to give custody to another person, it won't.  You'll more than likely need a legal guardianship for that. 

Who gets to claim the children?

One of the questions that is most asked in a child support or custody scenario is “Who gets to claim the children on income taxes?” A Mom and Dad can agree on who claims the deduction, or the Court can decide the issue.  However, the bottom line is that federal tax law determines who may actually claim the child or children even if a court order directs who gets the exemption.

The IRS has addressed when the noncustodial parent can claim the children in Publication 504, which discusses children of divorced or separated parents, or parents who live apart.

For tax purposes, the child is already the “qualifying child” of the parent that has custody. That means that the custodial parent can always claim the child. We’ll assume for this article that the Mom is the custodial parent, and the Dad is visiting. The Mom always has the right to claim the child, because she is the custodial parent. So, under what circumstances can the Dad claim the child? Well, let’s see!

The I.R.S. will grant Dad the right to claim the children if four conditions are met:

  1. The parents don’t live together, either because (a) they are divorced or separated under a divorce or separate maintenance decree, (b) they are separated under a written separation agreement, or (c) they lived apart at all times during the last 6 months of the year.
  2. The child or children received over half of his support for the year from Mom and Dad.
  3. The child or children are in the custody of one or both parents for more than half the year.
  4. Mom signs a document, most likely an IRS Form 8332, saying that she won’t claim the child that year and the Dad attaches this document to his taxes.*

As you can expect, number 4 above is the most important requirement. Even though the Court may award the deduction, the I.R.S may not honor the court order if the above requirements are not met.  Hence, it is always important for the noncustodial parent or his attorney to include in the settlement and court order some language requiring Mom to sign Form 8332 to release the exemption.

*There are special rules for a divorce decree signed prior to 1984 that are not discussed here.