Kelly London McCullar - Page 6

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          shows that Ms. McCullar, not petitioner, had physical custody of            
          Emily for the greater portion of 1998.                                      
               C.  Discussion                                                         
               The divorce decree gives custody of Emily to both petitioner           
          and Ms. McCullar, although Ms. McCullar is awarded “the primary             
          custody and control of * * * [Emily] at all times other than as             
          specified in the [divorce decree]”.  The situation thus fits the            
          description in section 152(e)(1) of the child (Emily) being in              
          the custody of both parents for more than half of the year.  To             
          determine the custodial parent, we must determine who had custody           
          of Emily “for a greater portion” of the year.  The statute offers           
          no assistance in answering that question.                                   
               As indicated above, section 1.152-4(b), Income Tax Regs.,              
          does address “so-called ‘split’ custody”.  While we acknowledge             
          the ambiguity of the term “split custody”,1 respondent has failed           

               1  According to commentators, the term “split custody” is              
          sometimes used to describe a situation where divorced parents               
          with two or more children each take custody of one or more of               
          those children.  See Wofford, Divorce and Separation, 515-2d                
          T.M., at A-64 n.634; Benson, “The Child Dependency Exemption and            
          Divorced Parents:  What is ‘Custody’?,” 18 Cap. U. L. Rev. 57, 64           
          (1989).  It is sometimes used interchangeably with “divided” or             
          “alternating” custody, in which sole custody (legal and physical)           
          alternates between the parents.  See Kapner, “Joint Custody and             
          Shared Parental Responsibility:  An Examination of Approaches in            
          Wisconsin and Florida,” 66 Marq. L. Rev. 673, 673 (1983); Cross,            
          Annotation, “‘Split,’ ‘divided,’ or ‘alternate’ custody of                  
          children,” 92 A.L.R.2d 695 (1963); see also Black’s Law                     
          Dictionary 390 (7th ed. 1999) (defining “divided custody”).  It             
          is also used interchangeably with “joint” or “shared” custody, in           
          which both parents share in the decisions concerning the child’s            

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