If the Mom needs the $$, e-file without the children. Then file a 1040X claiming the children and HOH status, with all the documents for proof, and don't forget to file the 8867 with the 1040X. This will get her some money now, and the refunds she's entitled to at a later point. The IRS will indicate on the ineligible parent's file that the EIC was claimed and a repayment is due to the IRS. What precedent is she concerned with setting?