NY Family Law: Child Care Costs and Child Support

One of my favorite munchkin’s, Toby.

Parents have an obligation to support their children. In addition to basic child support, which is determined by a formula in accordance with the Child Support Standards Act, “add-ons” are other obligated expenses provided for in New York’s Domestic Relations Law, including unreimbursed health care (DRL 240 1-b(c)(5)(v)), child care (DRL 240 1-b(c)(4)) and educational expenses (DRL 240 1-b(c)(7)).

Child care is particularly interesting because often times a parent takes works but may still need child care part-time. In that case, child care should be pro rata for the time that the custodial parent is at work and needs child care. See, e.g. In Matter of Gina P. v. Stephen S., 33 A.D.3d 412 (1st Dept. 2006).

Additionally, child care can sometimes include summer camp (which at first glance you might think would be an extracurricular activity). This depends on the specific facts of the case, but if the children are young and the camp takes the place of “day care” or other child care, you can be fairly certain the court will award camp expenses be shared by the non-custodial parent. See, e.g. Micciche v. Micciche (62 A.D.3d 673 (2nd Dept., 2009).

For some of the child support add-ons (e.g., child care), payments can be made directly to the provider by one parent and then that parent must seek reimbursement from the other parent. However, this can be tricky. Whenever possible, the custodial parent should try to arrange it so that the parties split the cost of an add-on and pay the provider their pro rata share directly. Otherwise, parents find themselves in court over these add-on reimbursements. This can be very time consuming because it requires the custodial parent (and his or her attorney) to assemble copies of receipts (to prove payment to a provider), figure out the pro rata share, and then add up the pro rata share of each bill to get a final reimbursement number. To avoid any problems, it is smart to try to pay providers by check (to have proof of payment), always obtain receipts, forward bills and/or proof of payment to the non-custodial parent and tell them what their pro rata portion is and when they should reimburse you.

There is no statutory cap on add-ons, a and courts may not impose a spending cap which cannot be exceeded without the non-custodial parent’s consent. However, this does not mean that custodial parents cannot negotiate a “cap” in a settlement agreement (that a court will uphold).

The non-custodial parent is entitled to question the reasonableness of add-on expenses for which the custodial parent is seeking reimbursement of the non-custodial parent’s pro rata share. For example, where the custodial parent is presently incurring child care expenses, the court may rule as to whether the expense is reasonable. Nolan v. Nolan, 215 A.D.2d 795 (3rd Dept., 1995). If the amount is excessive, the court may direct the noncustodial parent to pay his or her share of an amount that the court considers reasonable.

To avoid any issues with child care costs, divorcing parties should work towards drafting a separation agreement setting a spending limit or costs not to be exceeded without the consent of the non-custodial parent amount for add-ons such as child care.  Additionally, a bookkeeping system on add-ons should be implemented.

Cari works as both a family law attorney and mediator.  She can help mediate disputes on child support (including “add ons”) and works as a litigator in both New York Family Court and New York Supreme Court with family and matrimonial law disputes.