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each parent’s physical custody. However, even excluding the
hours when the children were in school, petitioner’s calculations
show that the children spent 3,672 hours in his physical custody
and 3,704 hours in the physical custody of Ms. O’Hara. Assuming
we excluded the hours the children were in school, petitioner’s
own calculations still show that the children spent 32 more hours
in the physical custody of Ms. O’Hara than they did with
petitioner.
Petitioner dismisses the 32-hour difference as
mathematically insignificant. However, the Code draws no such
distinctions and provides a bright line test. The plain language
of section 152(e)(1) provides that the “parent having custody for
a greater portion of the calendar year” is the custodial parent,
no matter how minimal the time difference may be. Petitioner
further argues on brief that the 32-hour differential is not
accurate because the children often spent time with Ms. O’Hara’s
relatives while she was at work; therefore, the children actually
spent more time in his physical custody than with Ms. O’Hara.
Petitioner presented no evidence at trial to support his
allegation. See Rule 143(b); Niedringhaus v. Commissioner, 99
T.C. 202, 214 n.7 (1992)(Statements in a brief that are not
supported by testimony or documents at trial are not evidence.).
If we were to determine that the children are in the
physical custody of a parent while attending school, the custody
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