Michael K. Berry - Page 37

                                       - 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 which                   






Page:  Previous  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  Next

Last modified: May 25, 2011