If we both have custody of my son and she doesn't have any earned income so there for can't claim taxes and I pay child support can I claim my son as a dependent
2 Answers from Attorneys
It's not true that she can't "claim taxes." Many tax-related "refunds" related to children are credits. That means you can get back more from the IRS than you paid in taxes. And you can get back a tax "refund" (a credit) even if you paid no taxes at all. You need to get a court order determining who gets what check back from the IRS in what years. Or, you may even want to split the miney you both get back from the IRS.
If she has no income and will not be filing an IRS return then yes you can claim the child. This should be reflected in the Court's Order if it is not then you need to clarify that with the court.