Child in day care center with worker

Do I Have To Pay Child Care Expenses On Top Of Child Support?

I am a New York attorney who has many years of experience handling different types of child support cases. My services also include handling child custody and order of protection cases. This article is intended to provide you with some basic information and possibly answer some questions about child support laws in New York State and is not legal advice for your specific situation. Please be advised that child support laws vary in other states.

In New York State in addition to the basic child support payment, a non custodial parent may be required to pay additional money for child care or day care expenses of a child or children. Courts recognize that the custodial parent may need some help in arranging child care if he or she works or gods to school. Child care expenses are called “mandatory add-ons”, which means that NY courts are required to order payments for child care in the following situations:

  • The custodial parent requires child care in order to allow her to go to work.
  • The custodial parent requires child care in order for her to attend primary or secondary education.
  • the custodial parent requires child care in order for her to attend post secondary or vocational education which will help her get a job or a better job.

The need for child care usually arises when the child or children are not of school age, or where the custodial parent needs someone to watch the child or children during the period between the school’s dismissal and when the mother finishes work. In New York City, most if not all public schools have free after school programs, so if the child or children is enrolled in a public school there may be no absolute need for child care.

I did, however have a case where the mother had enrolled the child in a series of expensive classes at a YMCA center rather than putting the child in a free after school program, because she believed that the YMCA classes were superior to the after school programs available. Surprisingly, the support magistrate agreed with the mother and made the father pay.

Do I Have To Pay Half of Daycare or Child Care?

In many states their laws require that each party pay half of daycare of child care expenses. However the law in New York State is different. In New York State, child care expenses are allocated between the parties in proportion to the parent’s respective incomes. using the same percentages that are used in calculating the basic child support payment.

What Type Of Child Care Can The Custodial Parent Use?

Pretty much any licensed day care facility or preschool will qualify as child care. Baby sitters also qualify, even if they are family members, but if challenged, the custodial parent will have to prove that the baby sitter is actually being paid. The court may require the babysitter to come to court to testify, and may refuse to accept accept written receipts or other documents, including even sworn affidavits from the babysitter.

Expensive nannies may also qualify, especially in high income situations. I had a case where both parents were emergency room physicians, and the mother often worked 12 hour night shifts and double shifts, so required a nanny to live in her home during these periods

I Am The Father, Do I Have A Say Regarding Choice Of Childcare Provider?

It depends on whether or not you have joint custody. Joint Custody usually requires both parents to agree as to major decisions regarding the child’s welfare. Some orders spell out what decisions are considered to be “major”. If this is not spelled out many courts may consider choice of school (which could include day care or preschool) to be a major decision.

A child support magistrate does not have the power to tell a parent what school he or she must send the child to, but if the parents have joint custody, a family court judge or referee could deal with issues of joinnt custody and order the custodial parent to remove the child from a day care or preschool based upon lack of consent from the other parent.

In this situation you will almost certainly require the services of an experienced child custody attorney.

Can I Challenge The Amount Of Childcare Cost As Excessive?

Assuming that the custodial parent has full custody, and therefore has the absolute right to choose a day care or preschool, if the cost of the school is significantly out of line with the cost of other providers in the area, a support magistrate or a judge may limit the amount that the non custodial parent is required to pay.

If the custodial parent lives locally, support magistrates and judges are familiar with typical costs of day care or babysitters in the area. The magistrate will probably not limit reimbursement based upon the cost of the cheapest provider available, and may be very reluctant to limit reimbursement at all in high income situations. The non custodial parent will have to be prepared to present some kind of admissible evidence as to the average cost of day care or child care in the local area.

Most documents that you would assume could prove the average cost of providers turn out to be inadmissible in court due to the rules of evidence. You may need to present testimony by an expert witness who comes to court, or possibly government statistics, and in these situations it is likely that both parties will be represented by experienced attorneys.

Sometime a claim is made that the custodial parent wants to be reimbursed for child care but is not actually using the child care, or is using the child care only sporadically. If you know or suspect that this is the case, you should definitely engage the services of an experienced attorney to protect your rights. A good lawyer can sometimes convince the judge to order that the child care payments be paid directly to the day care or preschool.

If you are going to resolve your child support case by using a written agreement, you or your lawyer should try to include a clause that either the payments will be made directly to the day care or preschool or require that the mother provide bills and/ or receipts within a certain time after she pays in order to qualify for reimbursement.

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