Making Child Care Decisions During Divorce

Divorce and Childcare: Who Hires the Sitter and Who Pays the Sitter

It’s that time of year. Fall is in the air, the kids are back in school, and it’s time to find childcare. While finding the right provider for your children can be challenging under the best of circumstances, when you’re divorced or separated and need to agree with your co-parent, it can be downright contentious. Concern or worry over who watches your children is completely understandable. What happens when you and your co-parent need childcare but can’t decide on the best course of action? Who chooses the provider, and who pays for it?


Who Gets to Choose the Childcare Provider?

Who can choose your childcare provider may come down to your custody agreement. The two basic types of custody in New York are physical and legal.

  • Physical Custody: A parent with physical custody is responsible for the daily care and supervision of a child. Parents can have joint physical custody and share parenting time equally, have one parent with primary physical custody and unequal parenting time, or have one parent with sole physical custody.


  • Legal Custody: A parent with legal custody is responsible for making all major decisions for a child, including medical, educational, and religious decisions. Parents can share legal custody and make all decisions equally, or one parent can have primary legal custody and be solely responsible for all major decisions concerning a child’s welfare.

In the case of childcare decisions, the parent with primary legal custody has the final say. If you and your co-parent have joint legal custody, then this is a decision you must make jointly. If you can’t decide jointly, you may consider using a mediator before resorting to the courts.


Making Decisions Collaboratively

There are also ways to structure your custody agreement or parenting plan to avoid conflicts. In some cases, parents with joint legal custody can have “spheres of influence” or specific areas where you each have the final say. For example, one of you could be in charge of medical decisions, and one of you could be in charge of educational or childcare decisions.

You and your co-parent can also include “tiebreaker” provisions in your parenting plan. In situations where you can’t make a joint decision, you can agree to seek the guidance of a professional, such as a counselor or physician. In the alternative, you can agree to seek the guidance of a neutral arbitrator or mediator.

However, even if you include plenty of failsafe measures in your custody agreement to ensure you’re unlikely to end up in court arguing over who picked the best babysitter, it’s a good idea to try to work together. If you and your co-partner can work together peacefully and communicate respectfully, it may become easier to make important decisions for your child jointly over time.


Who Pays for Childcare?

Paying the cost of childcare will also come down to your custody agreement. The basic child support contribution obligation for each parent calculated by the court is intended to cover the necessities of supporting a child, such as food, shelter, and clothing. But this basic child support obligation does not include the cost of childcare a parent may incur while working or attending school. The court will typically add these costs to the child support calculation and have each parent pay a proportionate share of the childcare costs. Mandatory add-on costs for child support in New York include expenses such as:

  • Health insurance,
  • Unreimbursed health care expenses, and
  • A share of childcare costs for a parent who is working.

The court may also add other costs for education, extracurricular, religious, and summer activities. However, you and your spouse can come to your own agreement about childcare costs and incorporate that into your child custody agreement.


The Miller Law Group

Divorce and separation can be stressful and emotionally nerve-wracking, particularly regarding major decisions about your children. It doesn’t have to be. There is a better way. At the Miller Law Group, we can help guide you through a more collaborative process with the knowledge and experience to help you make informed decisions. Call us today, to schedule a confidential consultation.

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