My ex removed our child from daycare because she’s afraid of safety during the pandemic. Should I be given a credit since a portion of my child support is meant to go toward daycare costs?
I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state, but I can provide you with general tips for this sort of issue.
Unfortunately, the short answer to this question is that it depends. The reason that it depends, is due to how your support order is written. In my state, any daycare expenses are separate and apart from the “base” support order. If, in your state, all of the child support is lumped together, it would be difficult to determine what portion of the support would be considered for daycare costs.
If you cannot determine what portion of the support is for daycare, then it will difficult to determine if you were entitled to a credit. Further, another consideration is if private childcare, like a babysitter is being used. If so, then the daycare costs could be transferred to the payment of a babysitter.
However, if you easily can determine what the daycare expenses are, then, if daycare is not being utilized, then you generally should receive credit for those payments. That being said, all support orders generally will remain at the current levels unless and until a party to the action files a petition to modify support. The court places the burden on the person seeking a change to the support order to take the affirmative steps to file the modification with the court.
Unless and until there is a modification filed, as mentioned above, the current support order, with daycare costs, will remain in place. In most jurisdictions, changes to a support order only will be effective from the date of filing when a change was requested. Therefore, if you are going to address this issue, you should not wait too long to file a petition with the court.
Further, please note that some courts will not modify the amount or duration of support if it appears that the change is circumstance is considered temporary.
For example, there is case law that states that a 20-month reduction in income only was temporary. Therefore, a reduction in support was not warranted. Since the pandemic presumably is going to be a limited duration event, the court could consider the change in daycare costs as a temporary change and not warrant a change to the support order.
Another alternative is to attempt to privately negotiate a temporary reduction in support. If you and the opposing party can come to a private agreement, a stipulation, preferably prepared by an attorney, can be submitted to the court encapsulated the terms of the temporary agreement.
Any stipulation modifying support/suspending daycare payments must be filed with the court, otherwise, the original support order will continue to be in full force and effect, and the court will not know that the terms have been modified.