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a. Determination of the Custodial Parent
The custodial parent is generally entitled to claim the
dependency exemption deduction. Sec. 152(e)(1). "Custody" for
section 152 purposes is:
determined by the terms of the most recent decree of
divorce or separate maintenance, or subsequent custody
decree, or, if none, a written separation agreement.
In the event of so-called "split" custody, or if
neither a decree or agreement establishes who has
custody, or if the validity or continuing effect of
such decree or agreement is uncertain by reason of
proceedings pending on the last day of the calendar
year, "custody" will be deemed to be with the parent
who, as between both parents, has the physical custody
of the child for the greater portion of the calendar
year. [Sec. 1.152-4(b), Income Tax Regs.]
Petitioner's ex-wife was granted custody of Laurie and Andrew as
managing conservator in the 1981 divorce decree.
On January 18, 1993, Laurie signed an affidavit in which she
chose petitioner as her managing conservator "subject to the
approval of the Court." Laurie's affidavit, however, was never
submitted to the court for approval. Texas State law allows a
child who is 12 years of age or older to choose, by a writing
filed with the court, a managing conservator, subject to the
approval of the court. Tex. Fam. Code Ann. sec. 14.07 (West
1993)(currently codified at sec. 153.008 (West 1996)).
The record in this case does not include a Texas court order
changing the manager conservator as appointed by the district
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