Daycare providers and your custody case

Posted on May 30, 2018 by Katie Carter

Daycare providers are often a hot button issue in custody cases, because daycare providers control the access to the children entrusted to their care. I don’t envy them, in a lot of cases, because they can get stuck in the middle of some pretty obnoxious and contentious issues.

When there’s a custody order in place, the daycare providers have to allow visitation to proceed according to the existing order. Of course, for that to happen, they have to be made aware of the order – and, obviously, they have to understand it, too. I’ve run into some situations with daycare providers (especially daycare providers of the in-home variety) who really just don’t understand what’s going on at all, and they have a hard time allowing custody and visitation to take place according to the judge’s order because they just don’t understand at all what’s going on. In all fairness, those orders can be VERY confusing, especially to someone who has no background knowledge of the case or of Virginia law.

But moms often have lots of questions about what daycare providers can and can’t do, and what is reasonable to expect of them. There’s a lot of tension surrounding daycare (or before and after school care, or nannies or whatever you use to help take care of the children in the time when you can’t be present) in divorce and custody cases, and a lot of issues can arise, especially in cases where moms and dads use different daycare providers.

When mom and dad use different daycare providers

There can be SO much tension when parents use different daycare providers! Each parent is often convinced that the other parent is using someone who will be shady to protect that parent (like, dad is using the wife of his chief, or a coworker’s wife, or someone who has some kind of loyalty to dad), and keep the other parent out of the way as much as possible. In some cases, I have seen that happen – but, mostly, I think even in those cases, the daycare provider was acting out of discomfort and confusion with the situation more than anything else. (In most of those cases, the child only remained with the daycare provider for a short period of time anyway; when the situation escalates, the daycare provider often asks the parents to make other arrangements for the child.)

What kind of information can you expect from a daycare provider?

Really, probably not a whole lot. You should expect the daycare provider to be given a copy of your custody order. If your child’s father hasn’t, you should provide it. If I were you, I’d make sure it was a certified copy, so that the daycare provider has no trouble telling what it is and that it’s authentic and final and ordered by the judge (as opposed to just an agreement you signed).

Will my daycare provider tell me when my child is picked up or dropped off?

As far as the child’s comings and goings… I think it’s kind of unreasonable to expect a daycare provider to tell you when the child has been picked up or dropped off, especially if you expect to know every single time. A daycare provider doesn’t exist to rat out the other parent for either leaving the child in daycare too long, or too often picking the child up when the child is supposed to be in daycare. Imagine how uncomfortable that would be for the daycare provider! What can they say, that won’t get them in trouble with the child’s other parent? Besides, in most cases, the daycare provider has more than one child.

Imagine if they were texting or emailing each time any child was picked up or dropped off! When would they have time to actually supervise the children in their care? It gets ridiculous pretty fast.

What if my child is sick or is hurt?

You’ll have to ask your daycare provider about their policy for sick or injured kids, and I’m sure they can tell you. I would imagine that, if the child needed to be picked up, the daycare provider would follow the custody order – the person who has parenting time on that day would get called first, but the daycare provider usually also has a list of emergency contacts.

As far as whether the daycare provider would call both of you, I think that’s a question for the specific daycare. Probably not; I would imagine that once they reached one parent, they’d stop calling and focus on the other children in their care. Most of the time, custody orders have specific language that says that both parents have to inform the other of illnesses, etc, while the child is in their care, and joint custody means (LINK) that you should cooperate on issues related to the non emergency medical care of the child. If the child goes to the doctor, for example, you should both be informed, and, to the extent possible, be made able to attend the appointment.

Of course, that’s not always possible, and you should inject some reasonableness in here. If your child breaks her arm, you go straight to the emergency room – you don’t wait until your child’s other parent gets off of work. If I were you, and that happened to me, I’d call my child’s other parent, tell them what I’m doing and where I’m going, and then once I got to the emergency room, I’d update again. “We’re in Room ____, come when you can. If not, I’ll let you know as soon as I hear from the doctor.”

For lingering maladies… It’s probably not reasonable to expect that your daycare provider would update you throughout the day, unless it’s their policy to do that. Especially if the day in question is a day where the child is having parenting time with dad, I think you’re overreaching a little bit, especially if you’re secretly hoping to catch dad not treating some illness or something the way you believe he should. Dad needs to parent on his time, and you on yours – it’s really not fair (to you, to dad, to the child, or to the daycare provider) to expect the daycare provider to act as an intermediary in your family drama.
Daycare providers and first rights of refusal

If your custody order includes a right of first refusal, the daycare provider should allow that to happen. She should have a copy of your order, like I already mentioned, and should be able to clearly read and understand this requirement. Usually, that will also mean that you need to be added to the authorized list of pick up people, which is controlled by dad, and not by the daycare provider herself. So, the daycare provider may need a little extra help in the form of the child’s other parent allowing these pick ups to take place, but once that happens, there should be no issue with you exercising your right of first refusal.
If you’re having issues with a daycare provider or have questions about what your custody order requires of your current daycare provider, it’s worth sitting down and asking some questions. Give our office a call at 757-425-5200 to schedule a one on one confidential appointment with one of our custody attorneys.