- 37 - to fail to qualify as alimony by reason of the substitute payment clause of section 71(b)(1)(D). 5. No Substitute Payment Liability Attributable to the Embedded Child Support Obligation We need not decide whether a general State law obligation to support one’s children, when viewed in conjunction with additional statutory provisions of the jurisdiction in question or the facts of a particular case, could form the basis of a substitute payment obligation under section 71(b)(1)(D). That is, even if there may be circumstances in which such an obligation could have implications under section 71(b)(1)(D), we are satisfied they are not present in this case. Under California law, a surviving parent is entitled to custody of his or her children, Cal. Fam. Code sec. 3010(b) (West 2004), even if the predeceasing parent had been awarded sole custody. In re Guardianship of Donaldson, 223 Cal. Rptr. 707, 708-709 (Ct. App. 1986); see Hogoboom & King, Cal. Prac. Guide: Fam. Law, sec. 17:247 (2004 ed.). Accordingly, even if petitioner had not been awarded joint legal and joint physical custody of the children, he would be entitled to immediate custody upon Carmen’s death. Compare N.J. Stat. Ann. sec. 9:2-5 (West 2002) (upon the death of the custodial parent, the care and custody of the children “shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect”). It follows that there would be no interim period during whichPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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