As we continue to navigate the ongoing public health crisis of COVID-19, parents are facing limited options for summer child care, as well as the potential that their children’s schools may be entirely or partially online in the upcoming 2020-2021 school year. This presents a particularly difficult situation for divorced couples who share custody. Every situation is different, but the following are some things to bear in mind for those navigating this issue:
Child support is always modifiable. Child support can always be modified if there is a change in circumstances that warrants modification. This could be a change in the income of either or both parties, a change in health insurance, or a change in the cost of work-related child care, to name a few.
Work-related child care is typically included in child support. The cost of work-related child care – that is to say the cost of summer camps, day care, before and after school care, and other similar programs is typically included in child support. That means the custodial parent who has work-related child care typically determines the type of care, and the cost of the care on a monthly basis, then that monthly amount is factored into the child support amount that the non-custodial parent pays.
Older children. There is no set age cutoff after which work-related child care is no longer applicable. Courts will look at the individual circumstances of each case; however in my experience, courts will typically start to view the necessity of child care for children over the age of about 12 or 13 with skepticism. However, this may change as parents who have to work away from home grapple with how to provide their pre-teens and young teens with distance learning. While children in this age range may be able to care for themselves for long periods of time, they may well need an adult presence to ensure their school work is being completed.
The other parent’s ability to care for the children may be a factor. Under section 20-108.2 of the Virginia Code, when determining whether to include the cost of work-related child care into child support, the Court must consider “the willingness and availability of the noncustodial parent to provide child care personally.” Thus, if the non-custodial parent is laid off or working in such a way that he or she is able (and willing) to provide care personally for the children, the Court must consider that.
Nannies and Au Pairs. Requests to contribute to the cost of nannies and au pairs can often be a source of controversy, and whether the cost is reasonable will depend greatly on the individual circumstances of the case. With school-age children, sometimes nannies and au pairs aren’t providing child care for large portions of the day and are instead doing other things for the household like cleaning and running errands. Should the non-custodial parent have to pay for that? Like in many situations, it depends on the circumstances. Would it be possible to get a nanny only for the times of day the children aren’t in school? Is the custodial parent’s job such that a live-in person is required (e.g. the parent is in a job that requires unpredictable work hours). The current pandemic may make nannies and au pairs necessary in many households. If a parent has to work away from the home, and children are not able to be in physical school during those work hours, a nanny or au pair may be the only available option for child care.
Work-related child care must come at a cost to be included. Courts can only factor the cost of work-related child care into the child support guidelines if it comes at a cost. Often grandparents or other relatives will provide child care, but if this care is given for free, it will not be included in child support. In my experience, Court will look with some degree of skepticism upon claims that relatives are paid for providing child care. Claims will depend on the circumstances of the case. Has this relative always been paid for child care? Is the relative paid consistently in a form that is easy to verify (e.g. by check), or is he or she paid inconsistently, and in a format that can’t be verified, like cash?
The more “legitimate” the arrangement appears, the more likely a Court will view the child care arrangement as valid and include the cost in with the child support. In light of the global pandemic, more grandparents and relatives may be providing care for school age children during times the children otherwise would have been in school or camps. Payment to these relatives may have to be considered.
As you continue to determine the best path forward through the current COVID-19 pandemic, the attorneys at Curran Moher Weis are here to support you with child support, custody and other family law matters. Follow our blog for additional information and tips or contact us here for a consultation.
