Right of first refusal clause and paying for childcare

Question:Divorce lawyer Leslie Lorenzano

My divorce decree reads “any child care expenses incurred because either party must work will be paid 65% by the Husband and 35% by the Wife.”

If I am available to watch my children while my ex is at work and she sends them to childcare, do I still have to pay?


Issues involving child care with regard to child support can often be a point of contention.  As I do not know all of the facts of your case, I can only speak in generalities based on my experience in family law in Indiana.

Often, child custody agreements will allow each parent to have a “right of first refusal.”  This means that when one parent is unavailable to care for the child during his or her scheduled parenting time, the other parent gets the opportunity to step in and act as the childcare provider for that time.

This is done to maximize the time that each parent spends with the child and prevents the child from spending time in daycare when a parent is available to watch the child.  You should review your child custody agreement to see if there is any such provision in your arrangement with your ex-spouse.

That being said, from your description of your agreement, if your ex-spouse is working, and has the child in daycare while she is working, you are obligated to pay 65% of the costs of that childcare if you do not have a right of first refusal (or a similar provision in your agreement).

Your jurisdiction’s laws may grant a presumption for a right of first refusal in these types of situations if your agreement is silent on the issue, so I would recommend that you consult a local attorney to discuss this matter.

Cordell & Cordell has divorce attorneys located nationwide.


Leslie Lorenzano is a Staff Attorney in the Indianapolis, Indiana office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Lorenzano is licensed in the state of Indiana and the U.S. District Court Sothern District of Indiana. Ms. Lorenzano received her Bachelor of Arts in Sociology from Purdue University, and her Juris Doctor from the University of Arizona – James E. Rogers College of Law.

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