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To decide who has custody, section 1.152-4(b), Income Tax
Regs., provides that custody "will be determined by the terms of
the most recent decree of divorce" if there is one in effect.
Section 1.152-4(b), Income Tax Regs., further provides that, if a
divorce decree or written separation agreement does not establish
who has custody of a child, or in the event of so-called split
custody, 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." Since the divorce
decree does not provide for the custody of Adam and Amanda, and
provides split custody for Nathan, and all three children resided
exclusively with Ms. Mosley during the years in question, Ms.
Mosley is considered the custodial parent under section 152(e).
Petitioner, as the noncustodial parent, is allowed to claim
a child as a dependent only if one of three statutory exceptions
are met. Under these exceptions, the noncustodial parent is
treated as providing over half of a child's support and,
therefore, entitled to the dependency exemption if:
(1)(a) The custodial parent signs a written declaration
that such custodial parent will not claim such child as a
dependent, and
(b) the noncustodial parent attaches such written
declaration to the noncustodial parent's return for the taxable
year, section 152(e)(2); or
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Last modified: May 25, 2011