It happens all the time. He just wants to be a dad, he says, so he asks for 50/50 – only for you to find out that his version of 50/50 means that he puts the kids in childcare, tries to lump this cost into the child support guideline, and doesn’t care that you are able and available to watch the child(ren) yourself during that time. What can you do?
Well, it really depends on where you are in your case, what your agreement says, and what specific circumstances bring you to this point. My experience is that courts and Guardians ad litem take a dim view of childcare when compared with the possibility of time spent with an actual biological or adoptive parent – so these are pretty good facts, on their face, if you’re talking about an initial determination or modification of child custody. Good facts are never a guarantee, of course; it’s entirely possible that a judge could see it differently, but … good facts are definitely a start.
Let’s talk about it.
He wants 50/50, but he can’t care for them – and I can.
This definitely matters. In general, most would agree that time spent with a parent who is healthy and able is better than time spent with a non-parent caregiver. It doesn’t necessarily mean daycare – though I think most people have an even dimmer view of daycare than other forms of childcare, which is NOT to say, if you need daycare, that this is a problem or a black mark against you – but any non-parent third party caregiver, which I would use to describe a nanny, “mother’s” helper, or even someone like a grandparent or a stepparent.
Time with a parent is usually given the greatest level of relative value. Of course, that’s assuming that the parent is healthy and able to provide quality time. I would not feel that time spent with a parent is better – nor, do I think, would a court – if that parent were abusive or facing other allegations related to their overall fitness. Serious struggles with mental health, particularly undiagnosed and untreated mental health issues, or struggles with addiction in addition to any concerns related to safety or child welfare, would be addressed and probably weighted more heavily than a parent’s mere availability to provide childcare. As always, the facts matter, and nothing is ever really as simple as ‘one size fits all’.
Many, many moms – myself included, I feel compelled to add – find ways to work flexibly that allow them to provide the greatest amount of care to their children possible. Working flexibly, working part time, working from home, or making other concessions (like living at home with your parents to save money and allow you the greatest amount of flexibility) may other be part and parcel of the decision to prioritize time spent with your kids.
I’d add, too, that many such opportunities may also be available to your child’s father, should he wish to take them. He could look for different opportunities that allow him to be more present or available during that time.
I think it’s a poor argument, in general, to say that you want the kids 50/50 when you can’t exercise 50/50. Your plan is to put them in …daycare? It’d be fine, of course, if both parents were working during those hours and needed the care. That changes the analysis completely and it starts to become an arrangement that quickly makes sense and, relatively speaking, is cost effective compared to other options, like nannies or au pairs.
Many judges and Guardians ad litem agree, too, so – if you and your child’s father can’t get an agreement on a parenting plan, you could petition the court and allow it to decide. You could also impose something like a first right of refusal, but that gets tricky especially if he’s trying to enroll the child in daycare (and take on all the related costs). This works better with a babysitter or a non-parent third party, like a grand or stepparent, because you could more easily swoop in and just take the kids back.
Of course, like with many other things, there are advantages and disadvantages to using a right of first refusal in this way, so be sure to talk to your attorney about the specific concerns in your case.
That’s really, though, what it comes down to – either you agree in a signed parenting plan or you go to court and let the judge (and the Guardian ad litem) decide.
Will he make me pay for this childcare, too?
Usually, work-related childcare goes right into the formula – because, usually, both parents need work-related childcare. In this case, I’d argue, of course, that he should bear the whole cost, especially if you don’t need childcare on your time, and during HIS time you’re willing and able to provide that care for free.
Of course, it’s not entirely free, in the sense that if you DO take on that parenting time, it may adjust the total amount of parenting time each parent gets. In Virginia, under shared physical custody, child support is calculated on a sliding scale, meaning that the more time each parent has, the less they pay in child support.
I think you’ll find, though, that his increase in child support is significantly less than what he’d pay in childcare. Moreover, it doesn’t likely offset the additional costs you’d face in taking care of the kids during that time. Though he may be willing to pay the cost just to keep the kids from you – it happens all the time – the net difference is unlikely to be the difference between paying for childcare and not.
Not only that, but many proper daycares won’t allow you to take up a spot part time, so the kind of childcare he’d be using to cobble together half-time care would probably be of an inferior variety. Be sure, of course, to look into this, too.
There’s no answer except to say that, if you find yourself in this boat, you’re not alone – and you’re not unjustified in thinking that the children would be better off spending time with a parent as opposed to being in daycare or cared for by some other non-parent third party. Ultimately, it comes down to either what you and he can agree on or, if you can’t agree, what the court will decide if you litigate.
Be sure to talk to an attorney and come up with a comprehensive plan of action. For more information or to schedule a consultation, give our office a call at 757-425-5200.