It’s a tale as old as time, I’m afraid. Ever since child support guidelines have been tied to the amount of parenting time that each parent gets, all sorts of disputes have come up about who gets what time and what, exactly, that time looks like.
The other day, I shared an article about how it looks when a parent wants 50/50 but then tries to put the child in daycare – even when the child’s other parent is healthy, ready, willing, and able to watch the child during that time herself. These are, in general, good facts, according to most circuit and juvenile court judges and Guardians ad litem. Most seem to be of the opinion that, even though time with dad is important, time with mom is more important than time with a non-parent third party.
Of all the childcare options, most seem to view traditional daycare in the dimmest light compared with other options. Sometimes, I feel the prejudice against daycares isn’t fair, but, then again, there’s all these reports… In any case, obviously, families with two working parents have to make the decisions that work best for themselves and their families.
And being ready, willing, and able to watch the kids during dad’s parenting time (or what dad wishes were his parenting time) doesn’t mean you’re not working. Many moms structure their entire lives in such a way as to be as available as possible to provide childcare – myself included. Whether you’re working flexibly, working from home, or following a nontraditional schedule, being available for your kids when you need to be is so incredibly important. Good on you!
But what if dad’s whole plan is to take the kids and then outsource their care – but not to a daycare?
I think courts, in general, at least in Virginia, value time with a parent over time with a non-parent childcare provider. I think there’s also a bit of a hierarchy; children can develop secure attachments to a LOT of people, but we see this especially in cases where there are nannies or au pairs or even – I’m sorry to say – people like grandparents or new girlfriends/partners who provide regular care to children.
These can be, though are certainly not always, viable options.
A court is less likely to be pro new girlfriend watching the kids than they are pro new wife. Sometimes, too, grandparents get a little more leeway, depending on the relationship the kids have with the grandparents. As always, we’d also look into the personal background of the caregiver in question.
I think the court would still be of the opinion that time with a parent is more important than time with a non-parent third party, but they’d also be more tolerant of dad delegating his parenting time to his parents (or even his new wife, especially once new siblings are added into the mix). In most custody cases, that’s the way “visitation” works for grandparents, anyway – the parents delegate time to their own parents if they want their parents to have it. If not, then they don’t.
You could put something in, like a right of first refusal, to trigger a return to a parent in the event a third party caregiver were utilized, but these provisions can come with all sorts of advantages and disadvantages. Before you implement one, talk it over with your attorney. You could also specifically disallow a certain caregiver – like your former MIL – if you agree that she’s a concern, or ask the court to disallow time with her, if your child’s father doesn’t agree but you still have specific concerns.
Does it matter if the care is provided for free or if he’s paying these people for “childcare”?
Yes and no. In general, work related childcare costs go into a shared formula. I’ve seen costs for grandma watching the child be added to the formula, but I’ve also seen cases where it isn’t added – especially if one parent doesn’t need childcare on their parenting time.
I have not seen a case where a stepmother (or new girlfriend) is paid for her time. Whether rightly or wrongly – that’s a little beyond our discussion here today.
In general, I think we depend way too much on the ability of women to provide unpaid domestic labor. Childcare is labor and should be compensated. But I also agree that the waters get muddied when dad may (or may not) be paying his mom but is still trying to pass on a part of that cost to mom, whether she needs the childcare or not. That’s especially true if former MIL is a toxic influence who uses her time with the kids to disparage the child’s other parent or to undermine other important relationships of the child(ren). All these things can be true and really complicated.
Whether or not a non-parent third party is allowed to provide this childcare is ultimately either up to the parents or up to the court. The court could set limits, restrict potential caregivers entirely, or order a right of first refusal to protect the parents from abuses of these arrangements (and, of course, these provisions would likely be designed to apply mutually to both parents).
I know, in some ways, that this answer is clear as mud. It depends! But, of course, it does depend – on the individuals involved, on the facts, on how much money is exchanging hands, on what the other parent’s availability is like, and so on.
It’s not a bad argument to say that the kids should be with a parent over any non-parent third party caregiver whenever possible. But it’s also true that other important relationships – like with a grandparent or even a parent’s new husband or wife, and certainly with step or half siblings of the child – can also be relevant and meaningful, adding value to the child’s life. (It can also be true that these closest of relationships are the most toxic and damaging – so, again, it depends.)
You’ll definitely want to talk to an attorney about the specific concerns in your case, including all the relevant facts (because they can vary dramatically) to get an idea of how to move forward.
For more information, to schedule a consultation, or to request a free copy of our custody book for Virginia moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.