B-242503, May 28, 1991, 70 Comp.Gen. 522

B-242503: May 28, 1991

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An employee's daughter is a member of his household where he and his former spouse have joint legal and physical custody of their daughter and she resides with him more than 50 percent of the time. Grundy - Overseas Tour Renewal Agreement Travel - Joint Legal and Physical Custody of Minor Child: The issue presented in this decision is whether an employee who has joint legal and physical custody of his daughter may be reimbursed for her travel costs in connection with his overseas tour renewal agreement travel. /1/ For the following reasons. Was initially appointed to a position in Alaska in April 1982. Grundy was accompanied by his wife and by his daughter. Grundy and his wife were divorced in August 1989.

B-242503, May 28, 1991, 70 Comp.Gen. 522

CIVILIAN PERSONNEL - Travel - Overseas travel - Tour renewal travel - Dependents Under 41 C.F.R. Sec. 302-1.4(e) (1990), an employee's daughter is a member of his household where he and his former spouse have joint legal and physical custody of their daughter and she resides with him more than 50 percent of the time. Therefore, the employee may be reimbursed for his daughter's travel costs incurred in connection with his overseas tour renewal agreement travel.

Alan M. Grundy - Overseas Tour Renewal Agreement Travel - Joint Legal and Physical Custody of Minor Child:

The issue presented in this decision is whether an employee who has joint legal and physical custody of his daughter may be reimbursed for her travel costs in connection with his overseas tour renewal agreement travel. /1/ For the following reasons, we hold that the employee may be reimbursed for his daughter's travel costs.

BACKGROUND

Mr. Alan M. Grundy, an employee of the Forest Service stationed in Ketchikan, Alaska, was initially appointed to a position in Alaska in April 1982. Upon completion of his initial and subsequent 2-year tours of duty, he performed renewal travel in 1984, 1986, and 1988. In each of these years, Mr. Grundy was accompanied by his wife and by his daughter, Miss Leigh M. Grundy.

Mr. Grundy and his wife were divorced in August 1989. Under the provisions of the decree of divorce, he and his former wife were granted joint legal and physical custody of Leigh and each parent was granted alternating weeks of physical custody. Mr. Grundy now seeks reimbursement for Leigh's airfare costs incurred when she accompanied him on his tour renewal travel from June 15 through July 1, 1990.

Mr. Grundy maintains that his daughter, who was 8 years of age in 1990, is part of his household and that, in practice, she spends more than 50 percent of the time with him because of extensive travel performed by his former wife. He reports that he has not been able to obtain a letter from his former wife to verify that Leigh lives in his household in excess of 50 percent of the time since she is concerned that such statement could be used against her in future custody proceedings. He also states that the Internal Revenue Service and the State of Alaska consider Leigh a member of his household. He reports that he has claimed and will continue to claim her as a dependent on his income tax returns for alternate years, i.e., 1988, 1990, 1992, when he performs tour renewal travel. Mr. Grundy says that Leigh was living with him at the time he performed his tour renewal travel in 1990.

OPINION

Tour renewal agreement travel for an employee and his or her immediate family is authorized under 5 U.S.C. Sec. 5728 (1988). The definition of "immediate family" in the implementing regulations contains a listing, including "children," of named members of the employee's household at the time he or she reports for duty at the new permanent duty station or performs authorized or approved overseas tour renewal agreement travel. /2/

The term "children" is sufficiently broad to include a child whose custody has been jointly placed in an employee and a former spouse. /3/ In order to be considered a member of the employee's "immediate family," and consequently entitled to the travel and transportation allowance being claimed, the child must be a member of the employee's household at the time the renewal travel is performed. /4/

We have held that in order for a divorced employee's child to be considered a member of his household, it must be established that the child is in his legal custody and resides with the employee at his permanent duty station and is not merely engaged in the exercise of visitation rights. /5/ Where a child is in the employee's joint or divided custody, the length of time the child actually lives with him at the overseas post of duty, and the intent of the parties to make the child a member of the employee's household are the factors which must be considered in determining the employee's entitlement to travel and transportation expenses for her. /6/ Where a child in an employee's joint custody resides with him for only a brief period (1 month) each year, that child does not qualify as a member of the employee's immediate family. /7/

In the case before us, Mr. Grundy has joint legal and physical custody of his daughter and physical custody every other week. Further, he states that, due to the extensive travel performed by his former wife, Leigh actually lives with him more than 6 months each year. In addition, he says that Leigh is recognized as a member of his household by the Internal Revenue Service and the State of Alaska. He claims her on his income tax returns in alternate years, coinciding with his tour renewal agreement travel.

We believe that, where as here the evidence shows that a child of divorced parents resides with the employee parent more than 50 percent of the time, the child may be considered a member of the employee's household for purposes of FTR Sec. 302-1.4(e).

In these circumstances, we conclude that Leigh is a member of Mr. Grundy's household for purposes of the requirements contained in 41 C.F.R. Sec. 302-1.4(e) and, therefore, he is entitled to reimbursement of her travel costs incurred in connection with his overseas tour renewal travel from June 15 through July 1, 1990. The voucher may be certified for payment if otherwise proper.

/1/ The request for decision was submitted by Mr. Richard H. Thomson, Authorized Certifying Officer, Forest Service, USDA.

/2/ 41 C.F.R. Sec. 302-1.4(e).

/3/ 52 Comp.Gen. 878 (1973).

/4/ John C. Raynor, B-187241, July 5, 1977.

/5/ See B-208874, Nov. 16, 1982, where the employee's child only visited him during the 2-month summer visitation period.

/6/ Ernest P. Gianotti, 59 Comp.Gen. 450 (1980); B-129962, Nov. 17, 1976.

/7/ Raynor, supra.