Can a U.S. Parent Claim the Child Tax Credit When the Custodial Parent Is a Nonresident Alien?

Can a U.S. Parent Claim the Child Tax Credit When the Custodial Parent Is a Nonresident Alien?

Here’s a real world expat tax scenario I’ve encountered:

A divorced U.S. citizen father has two U.S. citizen children living abroad full time with their mother.

The mother is a nonresident alien with no U.S. tax filing obligation.

The father provides most of the financial support.

IRS rules say he cannot claim the children as dependents or take the Child Tax Credit unless the custodial parent signs Form 8332.

But here’s the issue:

Residency with the father is not required under IRC §152(e) if the custodial parent releases the claim.

Yet the custodial parent here, being a nonresident alien, has no U.S. legal right to the Child Tax Credit or dependency exemption to begin with.

Even if she signed Form 8332, it would technically be invalid because there’s nothing for her to release.

Paradoxically, if she did sign Form 8332, the IRS would probably process the claim without noticing or questioning her nonresident status.

This shows a structural gap in the law:

When the custodial parent is a nonresident alien, it should be treated as if Form 8332 was signed by default, because the release requirement makes no legal sense in that context.