Childcare Costs Feed

Can my ex-spouse sign me up to be billed for childcare without my permission?

Screen Shot 2016-11-21 at 4.51.24 PMBy: Christopher A. Pearsall, RI Divorce and Family Law Lawyer*

QUESTION: 

Can my ex-spouse sign me up to be billed for childcare without my permission?

DETAILS:

My ex and I have an order to split child care 50/50 for her work and education. She has gone and signed me up to be billed directly by the child care provider without my permission. She refuses to provide me her schedule of work and school. But the bills provide no information other than payment amount. 1. Is it legal for her to sign me up for a payment account without my signature?  2. What is my recourse if she decides to use the childcare for personal reasons and they bill me for half?

ANSWER:

Under Rhode Island law, your ex-wife has no legal right to commit you to any payment agreement with the childcare establishment based on the family court order as you describe it.

The answer to your first question is "No."  If she actually signed your name to a contract or to some other document to bind you to payment to the childcare provider without your authority or knowledge, then your ex-wife committed the crime of forgery and she can be prosecuted for that.

The answer to your second question is that your recourse is to take your ex-wife back to family court and file something such as a motion for credit for any monies you paid for one half of whatever time was spent on personal time rather than for work or education. 

You will need to keep in mind that if you take your ex-wife back to court on the motion I suggest above then you will have the burden or proving by clear and convincing evidence that your wife used the child care for strictly personal purposes and that you overpaid as a result and should be entitled to a credit.  You would likely have to prove when it was personal, how you know it was personal and what the personal activity was, how much was charged for that personal usage and how much you were overcharged for that personal usage on each occasion.


Rhode Island Child Support Can Create Daycare Headaches

Childcare costs are included on the Rhode Island Child Support Guidelines Worksheet and can be a significant part of your child support obligation.

This substantially affects fathers more than mothers.  This is by no means intended to insult women or mothers, yet practically speaking more mothers are awarded placement of the minor children than fathers whether by the court or by agreement. Therefore, the father is the non-placement parent and is subject to paying child support more often than the mother.  This often includes work-related childcare costs reasonably necessary for one or both parents to work and support the child(ren).

Child care costs can be anything from day camps at the YMCA during the summer (which often are a cost-effective substitute for child care and also beneficial and fun for the child) or a full-time daycare provider in your local community.

Two big pitfalls that you should address if you go before the Rhode Island family court for a divorce or a proceeding to set or modify child support as the non-placement parent are:

1.  Proof of the Child Care Cost. - You should make sure that you have the "actual" figures from the daycare provider themselves as to what the childcare cost is or will be for your child(ren) for an upcoming session.  Additionally, find out what the childcare cost covers (i.e. what days and times are your children cared for).  Confirm the enrollment of each child with the actual provider. This is to ensure that you pay for childcare costs that actually exist or are planned for and are associated with either you or the other parent working.  You want to make sure you are not paying for extra childcare used only by the placement parent that are not related to either parent being able to work.

Projections or general "program costs" should be avoided because they are not necessarily the actual costs.

2.  Offer Direct Payment - Since work-related childcare costs are included on the Rhode Island Child Support Guideline Worksheet they are typically included as part of child support and are directly payable to the placement parent, usually by garnishment of your wages.  I recommend that the non-placement parent offer to pay his or her portion of the child care costs directly to the childcare provider and included in the Court's Order as a direct payment of childcare expenses to the provider rather than deduction by garnishment.   

Why?

First, as long as the non-placement parent makes direct payment to the provider, then he or she is more likely to be paying his or her fair share of the correct cost and knows it is going to the provider. 

Second, the non-placement parent is likely to be made aware of any changes in the childcare program itself or the program cost if payment is made directly.

Third, if you do not pay the provider directly but rather you pay the placement parent as part of the child support then your name (as the non-placement parent) is very likely not on the childcare provider's account.  If this is the case, as it often is, then it is possible for the placement parent to remove the child(ren) from the program without your knowledge and you would continue paying those extra monies as a windfall to the placement parent who may simply choose not to disclose to you that the child(ren) was/were removed from the childcare services.

I have seen this happen on numerous cases during my tenure as a family law attorney here in Rhode Island.  In several cases the non-placement parent paid the placement parent for childcare services for years without knowing that the services weren't being provided anymore. Some placement parents received thousands in childcare services that they merely pocketed.  In the end it would have been more costly in legal fees, costs, and lost time from work for the non-placement parent to recover those monies from the placement parent and therefore the non-placement parent was essentially "taken" for those costs.

In every event, a non-placement parent who is paying childcare costs should always be on the providers account equally with the placement parent.  Also, the childcare provider should be instructed to place both parents equally on the account and to provide notice to each parent directly in the event of any change in cost or program curriculum.  This will save significant hassles for the non-placement parent specifically.

Why are these points so significant? 

Verification and confirmation of actual childcare costs leads to an accurate and fair calculation of what the non-placement parent must pay as his or her fair percentage share of those costs.

It also prevents the placement parent from simply making a representation as to what he or she says the childcare costs are and potentially cause the non-placement parent to pay significantly more in childcare costs. 

If the childcare costs end up being paid directly to the placement parent then this ends up being a financial windfall to the placement parent that he or she is not entitled to at the expense of the non-placement parent.  What does that mean?  Essentially the non-placement parent will be overpaying for the support of the minor child/children.

Offering direct payment to the child care provider leads to the likelihood that the non-placement parent will be paying only his or her fair share of that cost and as a parent paying for the program you should be entitled to receive from the child care provider a complete accounting of the program activities as well as the charges and payment activity on the account should you ever need to verify compliance with the court's order.

Lastly, direct payment to the provider and verification of the program prevent the placement parent from being able to play games with the child care arrangements to create for themselves a financial windfall. 

For instance, if John makes 80% of the total income that he and his wife Janet make combined, then he is likely to be required to pay 80% of any child care costs.    Janet comes into court and says that their daughter Tanya is enrolled full-time at Tiny Timbers Day School at $200 per week.  Let's assume John is ordered to pay $160 per week as his 80% share just based on Janet's representation that this is the truth and John's is told that this will be included in his child support and garnished from his weekly paycheck with his employer.

Let's assume that Tiny Timbers Day School only costs $160 per week for the childcare program.  John is then actually paying 100% of the daycare and Janet isn't paying a dime.   John should only be paying $128 per week as his 80% of the actual child care costs.  Janet doesn't tell John about the cost difference. Janet pockets $139.00 per month from John's overpayment based on 4.33 weeks in each month under RI's Child Support Guidelines.  Assume now that Janet changes her schedule at her job and is able to eliminate two days of the child care at Tiny Timbers for Tanya but doesn't tell John.  The cost for 3 days per week is reduced to $110 per week.  Each and every week John's paycheck continues to be garnished $160 because John is not informed. Janet doesnt' inform John or the court and keeps the extra money coming in.  John should now be paying $88 per week but because he is garnished and is not informed he continues to pay $160 a week.  Janet is now receiving an extra $312 per month as a windfall at John's expense.

The moral of the story.  Get written confirmation from the child care provider of the enrollment and the actual costs for your child or children and endeavor to make direct payment of your share to the child care provider a part of the court's order rather than garnishment.   Absent these two factors you are likely to be overpaying on the child care costs.

For a complete analysis and reliable legal advice regarding all aspects of your child support and child care rights call me.

Note: This is a synopsis of an actual case before the Rhode Island Family Court.  Names, amounts and the care provider have been changed to preserve the privacy of the parties. The non-custodial parent in this particular case was divested of in excess of $5,000 by the the time the lack of childcare was discovered at a hearing before the court.