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petitioner might be required, pending judicial action, to
make payments to a de facto custodian in discharge of his general
State law obligation to support the children.29
A third party could defeat petitioner’s initial custody right
only by going to court and demonstrating that petitioner’s custody
would be detrimental to the children and that a change in custody
is required to serve the best interest of the children. See Cal.
Fam. Code sec. 3041 (West 1994); Hogoboom & King, supra, sec.
17:247. As noted above, the Superior Court awarded petitioner
joint physical, as well as joint legal, custody of the children,
and the 1999 order indicates that petitioner’s “share” of physical
custody at that time was 42 percent. In the absence of any
evidence that (notwithstanding such court-approved custody) a
third party would have had grounds to challenge petitioner’s
custody rights had Carmen died, we have no reason to believe that
anyone other than petitioner would be entitled to physical custody
of the children for periods after Carmen’s death. Absent a
successor payee, petitioner would have no substitute payment
liability with respect to the child support element of his family
support obligation. See Kean v. Commissioner, T.C. Memo. 2003-163
29 As we observed in Cunningham v. Commissioner, T.C. Memo.
1994-474, if a payor spouse is required “to make even one
otherwise qualifying payment after the death of the payee spouse,
none of the related payments required before the payee spouse’s
death will be alimony.” See Okerson v. Commissioner, 123 T.C.
258, 267 (2004); sec. 1.71-1T(b), Q&A-13, Temporary Income Tax
Regs., supra; cf. supra note 11.
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