Ask a Divorce Lawyer: Is child support different from child care expenses?

Divorce Attorney Angela FoyQuestion:

We’ve been having disagreements in what child support is supposed to cover. Is child support different from child care expenses?

If so, what constitutes child care expenses? Are they payments made to a person or the actual expenses?



Each state has its own standards and guidelines on child support orders that vary from state to state.  I do not practice in California, so I cannot advise you on the specific statutes that may affect your case.

Typically, “child care expenses” are incorporated in “variable expenses,” which is an aspect of child support, but different from the general support orders that may or may not be ordered in addition. Generally, variable expenses are defined as the reasonable costs above basic support costs incurred by or on behalf of a child, including but not limited to, the cost of child care, tuition, a child’s special needs, and other activities that involve substantial cost.

Most orders that specify variable expenses address to how the amount is to be paid.  Some orders require one parent to cover the entire cost, provide the other with a receipt and then that second parent reimburses the first.  This is most common for sporadic expenses or general orders stating that parents shall equally split variable expense.  For set, known expenses, such as child care and tuition, the order will generally state whether the amount is to be paid to the other parent or to the provider directly.

The court will likely want to know how the diapers, food and necessities were provided when your mother provided the child care.  If one of the parents provided these necessities, and the additional amount was to compensate your mother for the actual care, then based on those facts alone, the cost of the care has decreased.  However, if the additional amount went to your mother and she provided these items, then the cost might not have change substantially. You could potentially make the argument that you should now receive the set amount to compensate you for providing these items, if that is in fact the case.

Setting the order initially is one aspect, but now that the order is set and the father is trying to modify it, he has additional burdens to prove.  Modifying child support, in most jurisdictions, requires a material change in the circumstances upon which the ordered payments were predicated.  For example, if the child care provider was a school, company or institution that gave notice that the cost of the care as a matter of policy was changing, the change may be material depending on how substantial the change is.  Many providers give notice annually of the change in cost for the next year.  However, your circumstances are different, and depending on the evidence presented, the court could find that the change in providers from your mother to your grandfather may not be a material change and deny his motion.

The burden of showing that there has been a substantial change is on the party seeking the modification, in your case, the father.  However, as a practical matter, it will likely be up to you to prove that the change in relatives providing care is not a material change.

How strong the father’s argument is depends on the specific wording of the support order, the facts of your case, and the specific rules in your jurisdiction.  I do not practice in California, so I cannot inform you as to the state’s specific laws.  I recommend that you consult a domestic litigation attorney in your jurisdiction.


Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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