One might not believe that provisions for childcare is an area that can be exploited. Oftentimes, we take for granted that the kids will be enrolled in a daycare center and it’s just part of the everyday… whether you’re divorced or not.
Not so.
Nearly every consideration made when a custody order/agreement is made is ripe for exploitation by a greedy, high-conflict ex-spouse. How so? Well, most child support orders include within the calculations the costs for appropriate childcare. This is normal and it is reasonable. The typical child support order will allocated this costs in proportion to each parent’s income and the portion for which the payor of child support is responsible will become part of the monthly child support obligation. Childcare is expensive!
Our own personal experience saw this issue exploited for financial gain several times by “Jane.” Absent a provision that specified the requirements for childcare, “Jane” would enroll the children in childcare and the costs would be allocated to each parent accordingly and become part of the child support order. However, subsequent to the child support order being entered, “Jane” would remove the children from the agreed-upon childcare facility and have a friend, a family member, or other person babysit the children and claim to be paying as much as we were paying for the daycare center. Of course, this would prove to be not true, but without specifics within the custody order/agreement, aside from arguing about it, there was nothing I could do, except go back to court (which eventually happened).
How does the high conflict ex stand to gain financially by doing so? Let’s offer you an example (using round figures for the sake of easy math):
Michael and Jane earn income. Of the total income, Michael makes 65% of the total.
The monthly daycare costs for the children = $2,000/month. Michael’s responsibility is 65% of that figure – a total of $1,300/month. Therefore, that figure becomes part of the child support number.
After the order is in place and you leave the courtroom, Jane removes the children from the agreed-upon daycare and has her neighbor watching the children for $500/month. At 65%, Michael’s responsibility for such a figure would only be $325/month
The net-income gain for Jane is the $1300/month that the order has allocated for Michael’s portion of the daycare center costs less what he would pay for the neighbor: $325/month. Jane pockets the difference: $975/month.
Now, realistically, everyone knows that, despite Jane’s claims to the contrary, she’s not likely paying the neighbor $2,000/month to watch the children. Michael, however, has no recourse as the custody agreement is not specific enough about the requirements for childcare for him to do anything about it. He has to go back to court again and probably subpoena the neighbor. Even then, there may not be a paper-trail that demonstrates payments to the neighbor to substantiate Jane’s claims. Beyond that, you simply have to pray that the neighbor will tell the truth under oath. Not likely.
This is why it is absolutely imperative that you be quite specific in the custody agreement with regards to what will define “appropriate childcare.” If not at the outset of your custody battle, at the next available opportunity for revision – even if it means filing for a modification to both the custody agreement and the child support agreement to accomplish this.
After I experienced just such a situation in 2 consecutive years, my custody order was revised to contain language similar to this:
Childcare: During the school year, the children are to be enrolled in aftercare associated with the school they attend preferably. If not, another licensed/certified daycare facility, nanny, babysitter – is permitted as agreed upon in writing by both parties. During the summer period, the children are to be enrolled in a licensed daycare facility, summer camp, or certified nanny as agreed upon in writing by both parties.
Both parties agree to provide documented evidence upon request of payments made and any outstanding balances. Cash payments are unacceptable without a verifiable receipt on company letterhead. Otherwise, payment must be made by check, credit card, or other method that allows for reasonable assurance of the actual costs associated for said care.
Even so, this clause will not necessarily prevent the high-conflict ex-spouse from trying to do the same thing. However, it is plenty specific enough to allow you reasonable recourse via a contempt-of-court motion for a willful violation of the court’s order and appropriate sanctions that may include some or all of that which is detailed on our contempt-of-court pages.
Separately, if it’s logistically possible and you’re in a position to always or even occasionally do so, do include a provision that gives you the “right of first refusal” when, during your ex-partner’s custodial period, s/he is unable to care for the child for any number of reasons. Be sure to specify a reasonable length of time for the clause to kick-in so that you’re not hearing from the ex every time they have to make a quick trip to the store or other short-duration activity.
Right of First Refusal: In the event that either parent cannot make themselves available to care for the children for a period of not less than 4-hours during their custodial time for reasons which may include, but are not limited to; work travel, family illness, school holiday without work holiday, family emergency – the other parent will have first right of refusal to care for the children prior to any other arrangements being made. If the other parent is unable to care for the children under such circumstances, the custodial parent may make other suitable arrangements. Both the offer and acceptance/refusal must be made in writing.
Keep in mind that the “ROFR Clause” as it’s commonly referred to, doesn’t prelude you being contacted for periods of less than that 4-hour provision example. However, if you’re practicing low-contact, you might want to have a specific time period to limit the number of times you’re subjected to the high-conflict ex’s phone calls or emails. Pick a minimum time period that you believe you are able to handle. Consider, carefully, all of the potential pitfalls of that period, and then write it in if you’re okay with it!
This provision does not require you to care for the children during any potential time period. It’s okay to say “no” if you are unwilling or unable to take the children. It just gives you the priority when those situations arise – maximizing your parenting time with the children!
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