Posted on May 27, 2020

Daycare and Divorce in Illinois

Before a child is in kindergarten, they love you completely no matter what you’ve done. The child will barely even know you’re divorced or separated from the other parent.  It’s a very special time to be a parent but most of us have to work and we miss a lot of that of that time.  While we’re working, the child will usually be in a daycare.  How do you determine which daycare your child will attend and who will pay for that daycare during and after an Illinois divorce or custody matter?

What Daycare Will My Child Attend During And After My Illinois Divorce?

If your child was attending a daycare when one of the parents filed for divorce, the child will continue to attend that daycare for the foreseeable future.  The daycare was clearly a joint decision at one time and the courts will presume it was a valid decision. After all, “[i]t is presumed both parents are fit” 750 ILCS 5/602.7(b). So, both parents must have been making good decisions. 

If you haven’t yet registered your child in a daycare, it will depend on what your Allocation of Parenting Time and Parental Responsibilities says.  This document governs who makes the decisions for the child. 

There are four categories of decision making that every Allocation of Parenting Time and Parenting Responsibilities must allocate; education, health, extracurricular activities and religion.  750 ILCS 5/602.5(b)

Most parents agree to share the responsibility for making decisions for all of the four areas of the child’s life. 

Those parents that can’t agree must assign a factor to each parent.  Some parents make decisions for all four areas.  Some parents make decisions for 3, 2 or just 1 area.

Even when one parent has exclusive decision making for a particular area of the child’s life, that parent usually has to at least consult with the other parent before making the final decision.

Daycare is probably an educational decision. But, if it’s a daycare associated with a church, synagogue, mosque or temple, the decision is probably a religious one. 

The truth is, it doesn’t matter, before preschool (roughly age 3) the courts don’t care where the children attend so long as it’s safe.

Illinois family courts will always defer to the cheapest, most adequate daycare.

“The amount of child care expenses shall be adequate to obtain reasonable and necessary child care.” 750 ILCS 5/505(a)(3.7)(C)

If one parent wants the child to stay with them instead of daycare, that parent will be exercising their right of first refusal and their request for will be granted.

If one parent has a grandmother, mom or other relative who will watch the child for free (or at an extreme discount), then the court will typically allow that relative to watch the child in lieu of a paid daycare.

If one parent can find a cheaper daycare than the current daycare, the court will probably allow the child to attend the cheaper daycare so long as that daycare is convenient to all parties.

Once daycare becomes a “preschool” with an actual curriculum a family law judge may find that price is not the only factor to consider and that family law judge may order the child to attend the more educational preschool over the “merely babysitting” daycare.

If you insist on the better preschool or daycare, just offer to pay for the preschool of your choice out of your own pocket exclusively.

If you object to the better, more expensive preschool, demand a full evidentiary hearing on the issue of preschool.  No preschool is going to admit a child whose parent brings the preschool director to court to testify about that preschool’s educational worthiness. 

Who Pays For Daycare During Or After An Illinois Diovrce?

Now that you’ve read that the most affordable daycare almost always wins in a dispute, you should also realize that picking the daycare is more than half the battle.

If price is your biggest consideration when it comes to child care, look into Early Head Start and Head Start.  Both programs are child care with education that is either free or on a sliding scale. 

Beyond manipulating the cost of daycare, either parent can ask the court to order the other parent to contribute those daycare costs.

“Child care expenses. The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable child care expenses of the child. The child care expenses shall be made payable directly to a party or directly to the child care provider at the time of child care services.” 750 ILCS 5/505(a)(3.7)

The court will divide the expense according to the proportionate incomes of the parents.

“Child care expenses shall be prorated in proportion to each parent’s percentage share of combined net income, and may be added to the basic child support obligation if not paid directly by each parent to the provider of child care services. The obligor’s and obligee’s portion of actual child care expenses shall appear in the support order. If allowed, the value of the federal income tax credit for child care shall be subtracted from the actual cost to determine the net child care costs.” 750 ILCS 5/505(a)(3.7)(B)

For most people, it is too cumbersome to pay the daycare their proportional share directly.  One parent ends up responsible for paying the daycare and the other parent reimburses the paying parent for their share.  The paying parent has a duty to show the reimbursing parent receipts for the daycare payments.  Without proof of actual daycare payments the other parent has no obligation to reimburse their proportional share of those payments. In re Parentage of Melton, 748 NE 2d 291

If one parent is receiving a hefty child support payment or alimony payment, you may be tempted to ask “shouldn’t the child support pay for daycare?”  An Illinois divorce court can award child support and divide children’s expenses.

“[I]n addition to the statutory child support amount under section 505…, the trial court has discretion to also order the noncustodial parent to pay half of the daycare expenses and other reasonable expenses.” In re Marriage of Carlson-Urbanczyk, 2013 IL App (3d) 120731

“It is unusual to find two parties to a dissolution who are so evenly matched in terms of income. It is clear that the child-care expense is necessary as both parties work full-time in the teaching profession…It was not unreasonable to divide the day-care expense between petitioner and respondent.” In re Marriage of Serna, 527 NE 2d 627

What Happens If The Cost Of Daycare Changes?

Daycare costs more when kids are younger.  Obviously it takes more effort to watch a baby than it does to herd 10 toddlers.  So, daycares usually have different prices for different ages.  The older the child, the cheaper the cost of child care.

Each parent has a duty to let the other parent know if the price of the daycare is changing but each parent should be familiar with their child’s daycare price schedule. Once you both know and agree that the price of daycare is changing you both should just adjust the prorated, proportionate payment.

For example if you’re paying 33% and the other parent is paying 66% of the current costs, just pay 33% and have the other parent pay 66% of the new costs.  It’s that simple.

If you and the other parent can’t agree on this extremely simple principle which is also the law, you’ll need to petition the court to modify the required contribution

“An order for child care expenses may be modified upon a showing of a substantial change in circumstances. The party incurring child care expenses shall notify the other party within 14 days of any change in the amount of child care expenses that would affect the annualized child care amount as determined in the support order.” 750 ILCS 5/505(a)(3.7)(D)

If you’re worried about where your child will attend daycare and how you’ll pay for it, contact my Chicago, Illinois family law firm to talk with an experienced Chicago family law attorney

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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