CALCULATING “ADD-ON” CHILD SUPPORT IN NEW YORK: CHILD CARE EXPENSES

This blog post is fourth in a six-part series on child support in New York State. The purpose of this series of blog posts is to guide you through the basics of calculating child support and to leave you feeling comfortable and confident in your understanding of New York child support law.

Most parents going through a separation or divorce, whether they’re in mediation, Collaborative Law or in a court-based litigation process, are aware that some form of child support payments will be warranted in their case – if they have children under 21. But the details of exactly what amount of child support to expect can get confusing.

In the last three posts, I covered how to calculate the first part of a child support award, the basic child support obligation. This post and the two that follow it will help you understand how to calculate the second part of a child support award, the “add-on” categories.

Additional (“Add-On”) Categories of Child Support
Under New York law, the basic child support obligation is not expected to cover every expense in a child’s life. There are three special areas of expenses that the law individually breaks out and accounts for in a child support calculation. They are child care, health and education. This post will explore the child support rules concerning child care.

Mandatory Child Care Expenses
There are certain kinds of child care expenses that a court must make part of the child support award. There are where the “custodial” or “primary residential” parent has child care expenses as a result of: (i) working, (ii) receiving primary or secondary education, or (iii) receiving post-secondary or vocational education that the court determines will lead to work.

For these expenses, the court must assign responsibility pro rata between the parties based on their respective incomes. This is another area – in addition to the basic child support obligation – where the ratio of each parent’s income to the combined parental income is significant.

Using our example couple from previous posts, Mom earns $200,000 per year, and Dad earns $100,000 per year. Assuming again that Dad is the primary residential parent, let’s say that he has a full-time nanny caring for the two children, from 9am to 5pm, Monday through Friday, so that he can work. The cost of the nanny is $2,400 per month. Generally speaking, Mom would be responsible for $1,600 (67%) per month of the nanny expense, and the remaining $800 (33%) would be Dad’s responsibility.

Two important points to remember. First, the court will only award pro rata responsibility for what it deems to be a reasonable amount of child care expenses. So, if Dad was employing his mom to care for the children and paying her $50/hour, much higher than the going rate for child care in New York City, the court wouldn’t order pro rata reimbursement for the full expense Dad incurred. Instead, it would determine what it deemed to be a reasonable amount of child care expense and apportion responsibility for that expense.

Second, the court will only order reimbursement for child care expenses actually incurred. Going back to the example of Dad having his mother care for the kids, if Grandmom cares for the children at no expense to Dad, the court will not order Mom to pay Dad her pro rata share of what a reasonable child care expenses would be and let Dad pocket the savings.

An interesting question arises when the custodial parent wants to go back to school or get additional training and will have child care expenses as a result. If the sought after training or education has no link to the custodial parent getting work, the court won’t assign pro rata responsibility for it to the non-custodial parent. Often, education or training will arguably make the custodial parent a more attractive job candidate or eligible for a higher salary level. In these cases, the court will determine whether there is enough of a connection between the education/training (and reasonable child care expenses incurred) and the custodial parent’s future employment to warrant the assignment of pro rata child care responsibility to the non-custodial parent.

Discretionary Child Care Expenses
If a parent is looking for work and incurs child care expenses to do so (e.g., to be able to go on interviews), the court may assign responsibility for a portion (or all) of that expense to the non-custodial parent. But it is up to the court whether or not to do so. As above, the amount of the expense would have to be reasonable and actually incurred by the non-custodial parent.