Notes On Daycare Costs

It's a common occurrence for some or all of daycare costs to be borne by the non-custodial parent. Here are some ways to make sure this is handled equitably.

Often an agreement is made where the non-custodial parent's portion of daycare costs is deducted (by wage garnishment) from their paycheck, in some cases along with the ordered amount of child support. This may sound like a fair and reasonable way to do things, but this arrangement can easily end up working against the non-custodial parent.

If you are the non-custodial parent, DO NOT allow daycare costs to be withheld from your paycheck along with child support. When this happens, you lose a lot of leverage and control. Once the money is taken out of your check, where it goes and what it gets spent on is virtually impossible to determine.

This can make a difference if the currently calculated or agreed upon daycare costs change. If you're ordered (for example) to pay all costs for a daycare that costs $400.00 a month, that's how much the garnishment will be set at. If your child is later moved to a daycare that costs only $300.00 per month, you will still have that same $400.00 per month taken out of your pay. The "extra" $100.00 goes to your ex to do with as she pleases. Going to court, proving this, and getting the garnishment reduced can be an expensive uphill battle. Family Court judges are normally reluctant to reduce any portion of a child support award, even when it would seem fair to do so.

Alternatively, your ex may at some point decide to have the child cared for at home with a relative (at zero cost to her), but you will still have that same $400.00 coming out of your earnings. Congratulations- now you're subsidizing your ex to the tune of $400.00 per month. Money that was supposed to go toward the child's daycare costs is going directly into your ex's pocket, tax-free, for her to spend on whatever she wants. The best part for her, of course, is that she doesn't have to provide any explanation or accounting of where the money is really going. It costs you to go back to court and try and get it changed.

The lesson is that if some or all of the daycare costs are to be paid by you, insist that you be allowed to pay the daycare provider directly, AND that you choose which daycare is used.

Another alternative to consider is to have the divorce decree written so that you will be the primary daycare provider in the event your ex returns to work. If you are unable to provide daycare, you then get to name a third party to provide daycare, with both you and your ex paying the daycare costs 50/50.

If you word the divorce decree this way, consider applying for a midnight shift at your job. This will, in effect, give you full time with the children 5 or 6 days a week during the day. The potential disadvantage to this approach is that it may give your ex an incentive NOT to go back to work, so consider this idea carefully before making it part of the decree. Divorce situations vary enormously- this may be a great idea in one case, and not so good in another.

If you're already in a situation where money deducted from your paycheck for daycare isn't being spent on legitimate daycare expenses, file a Request for Production of Income and Expense, often referred to as an "I&E". These forms are available online for many states as well as being available at the county courthouse.

Many county courthouses have law clerks or Family Law Facilitators who can help with filing requests. You may need to make an appointment and also perhaps take their Pro-se classes (if offered).

When you get your ex's response to the I&E, you then can address the daycare element with the documentation you now have. You can also file a subpoena duces tecum to obtain any other desired information regarding the daycare. Typical items to request are:

business name of the daycare

business location of the daycare

weekly cost for a child the same age as yours

the enrollment start and stop date(s) for your child

Next, file an Order to Show Cause, or "OSC". Again, these forms are often available online or will be available at the county courthouse.

The reason given for the OSC filing will be due to "change in circumstance" and the requested action will be "reduction in garnisheed amount" from your paycheck. (Check with the law clerks or the Family Law Facilitators to find out the proper wording for your state and/or county.)

Also file a motion (with the Order to Show Cause) to segregate the daycare costs from child support, and to have the daycare costs ordered to be paid by separate personal check DIRECTLY to the daycare provider. This returns control to you of how much money is paid and which daycare provider it is paid to.

(For example, if you want to use daycare "A" and your ex wants to use daycare "B", she will either have to use daycare "A" or pay the costs of daycare "B" herself. Unless she has the sole authority to decide which daycare is used (read: paid), she will have to take you back to court to try and force a change in daycare providers.)