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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 which
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