Does A Non-Custodial Parent Have To Pay For a Nanny Forever?

In some cases, the parties will agree or a court will order payments for a nanny. The cost to pay for a nanny is considered a work-related child care expense. Both divorce litigants are expected to share the costs to pay for the nanny in accordance to their incomes under the child support guidelines.

A very important question often arises a few years after the divorce is over, and that concerns the length of time that a non-custodial parent must pay for employing a nanny. The costs of a nanny can by expensive. Moreover, the parties also have to pay commissions to the nanny’s employer. In today’s world, nannies are not just for the rich and famous. Many upper middle class families now routinely use nannies as well. However, what happens if a middle class family can no longer afford to pay a nanny? In these hard economic times, middle class families must make cuts in their budgets somewhere. In an unreported Appellate Division case released on November 7, 2008 entitled Herega v. Figueroa, that issue was specifically addressed. In the Herega case, the father had custody of the children. At the time of the divorce, both children did not attend school on a full-time basis. Therefore, the wife agreed to pay for one half of the costs of a nanny.

A few years after the divorce, the wife filed a motion to terminate her legal responsibility to pay for one half of the nanny expenses. There were two major grounds to support the motion. First, the wife alleged that the father and the nanny were now a romantic couple. The father and the nanny did in fact share the same bedroom. Second, since the kids were now 6 and 9 and in school full time, the wife asserted that there was no need for a full-time nanny. In fact, their school offered low cost before and after care. The husband denied that there was a romantic relationship. Moreover, the husband advised the court that the children still needed a full-time nanny. The family court denied the motion to terminate the wife’s responsibility to pay for one half of the nanny expenses.

Thereafter, the wife appealed. The Appellate Division reversed the case. The case was then remanded to the family court for a plenary hearing. The main issue at the plenary hearing was whether there was a romantic relationship between the nanny and the husband. Furthermore, the hearing was to address whether the nanny was still needed given the age of the children, and the availability of after-care at school.

This case is illustrates some interesting points. The first major point of this case is that there is no guarantee that the custodial parent is entitled to have the services of a nanny forever. If the non-custodial parent can prove to a family court that there has been a “change of circumstances,” then certainly a reasonable argument can be made that the nanny services are no longer necessary. Some possible changes of circumstances can include:

(a) The non-custodial parent has loss his job;
(b) The non-custodial parent has suffered a loss of income;
(c) The non-custodial parent has suffered a major illness and can no longer afford to contribute toward nanny expenses;
(d) The custodial parent has increased her income;
(e) The children have matured and they no longer need a nanny.

This case also indicates that the Appellate Division will not hesitate to remand a case to the family court if there are important findings of fact outstanding. The Appellate Division has consistently held that a case must be remanded if there are important factual determinations that must be made.

In my personal opinion, the family courts simply do not have the manpower to hear the tremendous amount of plenary hearings that are being remanded from the Appellate Division. It seems like every substantial motion that is filed in the family court now must have a plenary hearing. The expenses necessary to hold a plenary hearing in many cases makes the process not cost-effective. There are many adjournments until the parties ultimately get their day in court and have their plenary hearing. In the Herega case, the parties will spend more on lawyer fees than it would have cost to pay the nanny for a few more years. In summary, the costs to litigate often exceed the amount of money that is in dispute in many family court motions. The parties should always try to settle family court motions if possible.