Child Care Inclusion in Child Support

Working parents with young children will usually need someone to look after the kids, either when they are not yet in school, or if they are in school, for summers, and before/after school care.

Sometimes, family can step in, but for many parents, this means paying a babysitter, nanny, or licensed day care provider. And those costs are part of the child support obligation.

Inclusion of Day Care in Child Support

Colorado’s child support statute provides:

“Net child care costs incurred on behalf of the children due to employment or job search or the education of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted gross incomes.

C.R.S. 14-10-115(9)(a).

Most of the time, day care costs are relatively fixed, and upon one parent proving how much he/she pays, the costs are simply added to the child support worksheet. Indeed, there is even a line on the state worksheet which includes child care costs, after deducting the federal child care tax credit.

Note that the most accurate way to calculate costs is to try to figure out how much the annual day care costs are, and then divide by 12. If the children are preschoolers, in full-time care, it’s relatively easy, as they will need full-time care year-round, other than a few periods when parents take time off.

But when the children are in school, it’s more complicated. During the school year they may only need after-school child care. But on parent/teacher days, or other days off from school, full day care will be required, at a higher cost. And over summer and other school breaks, full-time day care will be needed for weeks on end, at least depending upon what the parents’ vacation schedules are.

A request to include day care on the child support worksheet will need both day care receipts/fee schedules showing how much it costs during the year and on breaks, and a chart with the math to bring it all together for the court.

When day care costs vary too much to be predictable, or are not yet known, they are usually not included on the worksheet, but the parents simply share them proportional to their incomes.

What is a Reasonable Cost for Day Care?

Day care costs cannot be excessive:

“Child care costs shall not exceed the level required to provide quality care from a licensed source for the children. The value of the federal income tax credit for child care shall be subtracted from actual costs to arrive at a figure for net child care costs.”

C.R.S. 14-10-115(9)(b).

There is very little case law interpreting what this means. And what may be reasonable in one case may not be reasonable in a different one. A single parent who works nights or travels a lot may need a live-in nanny, whereas someone else may just need a couple hours a day of after-school care.

Is a nanny included in child care costs in Colorado? Yes, under certain circumstances. In In re: Marriage of Finer, 920 P.2d 325 (Colo.App. 1996), the father had primary custody over the parties’ child, and the mother lived out-of-state. The Court of Appeals upheld inclusion of the father’s work-related nanny costs on the grounds that there was no evidence the cost was excessive.

A couple’s prior agreement to use a nanny may justify requiring both to pay the costs of one. In In re: Interest of T.I.E., 981 P.2d 642 (Colo.App. 1998), the parents had previously agreed it was appropriate to use a nanny to care for the child, so the trial court justifiably included work-related nanny costs on the child support worksheet.

A trial court’s failure to at least consider nanny costs is error. In In re Marriage of Payan, 890 P.2d 264, 266 (Colo.App. 1995), the parents had used a nanny during the marriage. Without making any findings as to day care, the trial court simply did not include one parent's nanny costs on the worksheet. The Colorado Court of Appeals reversed, holding: “Child care costs are included in child support if they are a result of employment or job search of either parent and do not exceed the level required to provide quality care from a licensed source.” See also In re: Marriage of Ikeler, 148 P.3d 347 (Colo.App. 2006) rev’d on other grounds, 161 P.3d 663.

At What Age Does the Need for Child Care End?

Parents are responsible for the are of their children, and that means making sure they are properly supervised during their parenting time. Per C.R.S. 19-3-102(1)(b), a child who “lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian” is considered dependent or neglected.

Colorado does not have a specific age when a child can be left alone without day care, but typically this age is assumed to be about 10-12 years-old. This depends completely on the circumstances, however. A 10-11 y.o. child may be okay for an hour after school, but not left overnight alone, for example. Conversely, a particular 13 year-old may lack the maturity to be left alone at all, even for brief periods.

A child who is scared or gets in trouble when alone should not be left without proper child care, regardless of his/her age. CO4Kids has a good article discussing considerations when leaving a child alone.

And trusting a child after school does not mean the child could withstand overnights alone nor that the child has the maturity to get up by herself in the morning, make breakfast, and get herself to school on time.

Military Standards. Military installations often have their own standards for leaving children alone. The policy at Fort Carson, for example, is as follows:

• 5 and younger: Must be supervised at all times.
• 6-8: may walk to or from school or day care without supervision.
• 9-12: may unsupervised up to 4 hours.
• 13-14: May be unsupervised up to 8 hours during the day.
• 15-17: May be unsupervised up to 12 hours, day or night.

At Peterson Air Force Base, the standards are:

• 4 and younger. Cannot be left alone.
• 5-6: May play in yard or park where adult can see and hear them.
• 7-9: May walk to or from school alone.
• 10-11:. May be alone at home with a way to reach an adult by phone
• 11 and older: Can babysit for up to two hours with access to adult
• 15 and older: May be left alone.

Age When Children Can Babysit

Just because an 11 y.o. may be okay being left alone for an hour after school, it does not mean that he/she is mature enough to care for a younger sibling.

The Colorado Youth Employment Opportunity Act requires a child to be 12 years-old before working as a babysitter for third parties. C.R.S. 8-12-107(1)(b). While this is the requirement to provide paid services to others, it is probably persuasive on what age a child should be to watch his/her own siblings.

The American Red Cross requires children to be 11 years-old to take their babysitting classes.

Fort Carson allows 13-14 year-olds to babysit younger siblings for up to 8 yours, and 15-17 year-olds for up to 12 hours. At Peterson AFB, as indicated above, 11 year-olds can babysit for up to 2 hours.

All of the policies referenced above were developed by child professionals, and none of them come to identical conclusions, highlighting how very fact-specific this is.

Which Parent Chooses the Child Care Provider?

In Colorado, a parent is responsible for the care of children during his/her parenting time. Moreover, a fit parent may presumptively choose who watches the children during his/her time, and whom to delegate that responsibility to. In re: Marriage of DePalma, 176 P.3d 829 (Colo.App. 2007). But parents also have joint decision-making over education - which could arguably include preschool or day care.

When one parent lives locally and has the children during the school year, it is generally accepted that the parent determine his/her own day care arrangements, limited by the requirement such costs not be excessive.

However, when you have two local parents sharing time during the school year, the “I pick during my time” position is not practicable - not only do many day care providers require full-time contracts, rather than just specific days or weeks, but it is in the children’s best interest to have stability rather than bouncing around between different providers depending upon whose parenting time it is. If the parents cannot agree on one provider, the court may end up stepping in determine which parent makes the call.

Proving Child Care Costs When Provided by Family Member

Here’s a scenario family law attorneys see - during the marriage, they couple lives near one set of grandparents. The grandparents, who are retired, love their grandchildren and cared for them free of charge whenever possible. But once the couple starts divorcing, suddenly one parent claims that the grandparents are going to start charging, and wants the costs included on the worksheet.

Just because extended family has provided free care in the past, it does not mean it must continue in the future. But courts obviously scrutinize such claims for costs from family and friends more carefully to ensure they are actually being paid, e.g. by requiring upon request canceled checks to prove payment, not just a receipt..

Only Share Actual, Not Imputed Child Care Costs

If a parent is voluntarily unemployed, a court is required to impute an income to that parent based upon his/her income-earning potential. But that’s where the imputation ends - day care costs which are not actually incurred may not be imputed to the non-working parent, nor otherwise considered in the child support determination.

In In re: Interest of A.M.D., 56 P.3d 1184, 1189 (Colo.App. 2002), rev'd on other grounds, 78 P.3d 741 (Colo. 2003). The Colorado Court of Appeals held: “Only those costs actually incurred may be considered in the support calculation, but the statute does not require that such expenses qualify for the federal income tax credit.”  (Cleaned up). See also In re Marriage of Connerton and Nevin, 260 P.3d 62 (Colo.App. 2010).

The court explained its reasoning in In re: Marriage of Mackey, 940 P.2d 1112, 1115 (Colo.App. 1997), citing the 1991 Colorado Child Support Commission:

“To require the obligor to be responsible for costs that are not actually incurred and which are speculative in nature seems patently unfair. The purpose of the [child support] Guidelines is to assess responsibility for costs actually incurred on behalf of the children in order to adequately address the children's needs. When the custodial parent becomes employed and pays for work-related child care costs then the child support order can be modified.”

Child Care for Education or Other Reasons

As the statute quoted above indicates, day care costs are included in the child support obligation if they were incurred “due to employment or job search or the education of either parent” C.R.S. 14-10-115(9)(a).

A parent who need day care to finish a degree can have the other parent share the costs, but not a parent who needs a babysitter for a fun night out without the kids.

Can a parent receive credit for child care costs which were not incurred for work or educational-related reasons? Maybe.

In In re: Marriage of Ikeler, 148 P.3d 347 (Colo.App. 2006) reversed on other grounds, 161 P.3d 663, the mother had majority time with 3 year-old triplets. Though she was not working or in school, she testified she could not bring triplets to grocery store or on many errands, so incurred 20-25 hours of babysitting costs per week.

The Court of Appeals held that while costs could not automatically be included on the child support worksheet, a parent’s “extraordinary costs associated with parenting time” may justify deviating from the guidelines. The court further noted, “Taking care of three-year-old triplets may be extraordinary circumstances justifying a deviation from the guidelines.”

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