Should I have to pay for daycare when I’m able to take care of the kids but my ex won’t let me?

Question: My kids have multiple school breaks through out the school year. Our divorce decree states that we will split the breaks 50/50. During the last 2-week break, I had my kids the first week and she had the second week. I took time off from work to be with my children as I always have. My ex-wife decided to stay at work and put the kids in day care even though I volunteered to watch them for a couple days (during her week).

She refused and the kids spent the week in daycare, and since it wasn’t my week I was not allowed to pick them up without her approval. The question is, she is charging me for half the daycare costs for that week, and I don’t think I should be responsible for this expense, should I?


Answer:  I am not licensed in the State of California so I am only able to answer this question based upon general practice.  Therefore, the specific answer in California may differ.

If available in California, I would suggest filing a Motion to Modify to request the court include a “right of first refusal.”  This would order that before either parent requires the services of a third party they would contact the other parent and allow them to care for the children before employing the services of an outside person.  Your situation is a little tricky as most “right of first refusal” orders deal with non-work related child care.  You would need to specify that  you would inform her of your schedule during breaks as it would be impractical for each of you to call each other every day and ask if the non-custodial parent wants to watch the children on a normal work day.

Regarding the payment, unless you have something specific in your divorce decree or parenting plan about not paying for daycare if you are available to care for the children I believe in most jurisdictions you would still be responsible for the daycare expenses.


Spencer E. Williams is the Team Leader over St Louis, St Charles, Indianapolis and Arnold (Jefferson County, MO) offices of Cordell & Cordell, P.C. where he practices exclusively in the area of domestic relations. Mr. Williams has tried numerous cases dealing with complex custody issues, maintenance, business assets and personal asset division.

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