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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
(continued...)
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