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the taxable year; (2) pursuant to section 152(e)(3), there is a
multiple support agreement between the parties as provided in
section 152(c); or (3) pursuant to section 152(e)(4), there is a
qualified pre-1985 instrument providing that the noncustodial
parent shall be entitled to any deduction allowable under section
151 for such child, provided that certain other requisites, not
pertinent here, are met.
The dispute in this case centers around which parent had
physical custody of the children for a greater portion of 1998.
Petitioner asserts that the children spent 183 nights in his home
and 182 nights in Ms. O’Hara’s home; therefore, he is the
custodial parent. Respondent asserts that the children were in
the physical custody of Ms. O’Hara for more time in 1998 than
they were with petitioner; therefore, petitioner is the
noncustodial parent.
The accuracy of petitioner’s claim that the children spent
more time with him because he had custody 183 nights is
questionable. Petitioner’s claim fails to distinguish between
those days on which Ms. O’Hara had physical custody for the
majority of the day, yet the children spent the night with
petitioner. For instance, petitioner claimed all alternate
Fridays as a full day of custody. However, when the children
were not in school and petitioner picked the children up at 5:00
p.m. on Friday, petitioner would only have physical custody for 7
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