Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Are Work-Related Childcare Expenses Handled in a New Jersey Child Support Case?

As an experienced New Jersey divorce attorney, the issue of child support is a daily event. In particular, the biggest issue in my opinion is a parent’s need for work-related childcare expenses and their respective costs. The reason this is such a disputed issue yet important to consider when awarding child support is because by including work-related childcare expenses, the amount of child support will drastically increase. Furthermore, the amount due to a day care facility will likely fluctuate which shall only cause further problems down the road.  As a New Jersey child support lawyer, ideally no disputes should arise.  However, as a New Jersey family attorney for nearly 20 years, I have learned that even what should be simple can quickly become complex.  Let’s explore.

Many clients that come to my office looking for the cost of childcare expenses to be added to their basic child support award seem nervous that the court will not grant such an increase in support. However, what many people do not realize is that the New Jersey courts explicitly recognize the importance of work-related childcare as a vital part of the income shares ideology. In keeping with New Jersey Court Rule 5:6A, which provides child support guidelines, the cost of childcare expenses related to work are expenses that are eligible to be added to the basic child support payment.

While this clearly seems fair and appropriate to the custodial parent upon a divorce, the noncustodial parent is typically not happy that he or she will have to pay even more in child support. That is why work-related childcare expenses are sometimes not added to the basic child support award. Instead, these expenses are split between the custodial and noncustodial parent equally. The reason that the courts will sometimes choose to go this route is to encourage the custodial parent to seek out work. If the custodial parent knows he or she does not have to pay for work-related childcare expenses and the noncustodial parent is paying all of the child’s expenses without any contribution from the custodial parent, there will never be any incentive for the custodial parent to work and support his or her child.

Aside from determining which parent, one or both, will be responsible to pay for work-related childcare expenses, I am frequently asked what a reasonable cost of such expenses even is. There are many standards and resources that one can look to when determining what is reasonable. The first is the Consumer Expenditures Survey. The survey is a compilation of research financed by the U.S. Department of Health and Human Services. It is known for providing the most reliable data approximating children’s expenditures. However, the data in the survey is only reliable for children in school.

If the children are toddlers or even infants, the standard to look to for determining a reasonable cost is the September 2009 study conducted by the New Jersey Association of Childcare Resources and Referral Agencies. The report is an extensive one, encompassing several center-based programs and multiple municipalities. Yet, the most fascinating point of the study is that the average yearly cost of care for toddlers and infants is even higher than the yearly cost to send your child to Rutgers!

In addition to the two issues regarding work-related childcare expenses described above, there are many other issues associated with the expenses. One controversial issue is whether or not the court should consider under-the-table work-related childcare expenses. Many people argue that work-related childcare should only be considered if taxed. Yet, most courts treat the expense very freely. Since public policy encourages both parents to actively contribute to their child’s care as I mentioned before, the courts place minimal limitations on work-related childcare expenses.         

Furthermore, another issue is whether it is fair to grant subsidies to working parents with either kids thirteen years old and younger or special needs kids. Currently, the New Jersey Department of Human Services does issue such subsidies, but in the past years there has been an increase in complaints by parents who do not meet those two requirements.

Moreover, the New Jersey rules of evidence bring about another issue associated with work-related childcare expenses. Pursuant to the business records exception to hearsay rule, NJRE 803(c)(6), “a statement contained in a writing or other record of acts, events, conditions, and subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.” The reason that NJRE 803(c)(6) is significant is because it relates to the level of proof required regarding work-related childcare expenses.

Ultimately, understanding the importance of work-related childcare expenses is critical. It is a rising issue, found in 20% of all dissolution and non-dissolution cases in New Jersey today.  If you have any questions, please contact my office.  Thank you.