The issue about custodial vs. non-custodial parent is a red herring in this case. The custodial/non-custodial parent rules only come into play if the parents are divorced, legally separated, separated under a written agreement, or lived apart the last six months (IRC 152(e)(1)(a), or if you prefer, reg 1.152-4(b)).
In this case, it appears that these requirements aren't met, so section 152(c)(4) applies instead. This is one of those rare cases where the section heading needs to be included in the reading, as 152(c)(4)(B) is titled "More than 1 parent claiming qualifying child", in which case the most nights/AGI rules kick in.
However, if only one parent claims, then 152(c)(4)(A) applies, and it doesn't matter which one had the child for more nights. This is clearly supported by Pub. 501 (or Pub. 17), under "Special Rule for Qualifying Child of More Than One Person", examples 7 and 8.
In this case, it appears that these requirements aren't met, so section 152(c)(4) applies instead. This is one of those rare cases where the section heading needs to be included in the reading, as 152(c)(4)(B) is titled "More than 1 parent claiming qualifying child", in which case the most nights/AGI rules kick in.
However, if only one parent claims, then 152(c)(4)(A) applies, and it doesn't matter which one had the child for more nights. This is clearly supported by Pub. 501 (or Pub. 17), under "Special Rule for Qualifying Child of More Than One Person", examples 7 and 8.
Comment