Chapter 9 - § 9.4 • CHILD CARE

• Jurisdiction: Colorado

§ 9.4 • CHILD CARE

When there are child care costs for the children for whom support is being calculated, those costs are factored into the calculation of child support. C.R.S. § 14-10-115(9) controls the issue of child care costs and sets forth the requirements for including those costs. The language of the statute is mandatory; once the appropriate figures are ascertained, they are included in the child support calculation.

Practice Pointer
Child care costs for school-age children vary during different parts of the year. The annual amount of child care should be determined and then divided by 12 to arrive at an average monthly child care amount. The end result is that the amount of child support remains consistent throughout the year, even though the custodial parent will be paying varying amounts of child care. It is impractical to provide for different child support amounts at different times of the year, and the purpose of the guidelines is to avoid such a result.
Practice Pointer
It is not unusual for child care to be provided by a family member or employer at a reduced cost or free of charge. The statute contemplates such costs incurred. Parties can agree to attribute a figure for child care to the calculation that does not correlate with the actual expense, and the court will most likely approve it. However, the argument that a phantom amount of child care should be used in the calculation when no actual cost is being incurred will, in all likelihood, fail in a contested case.

§ 9.4.1—Net Child Care Costs

The federal income tax credit is deducted from the child care costs in order to obtain the net child care cost. The federal income tax credit is tied to the primary care parent's income and ranges from 20 percent to 35 percent of the actual child care costs up to a limit of $3,000 per year for one child and $6,000 per year for two or more children. I.R.C. §§ 21(c)(1) and (2).

Practice Pointer
The federal child care credit can only be taken by the residential custodian. If the non-residential custodian is paying the child care costs, the net child care cost is arguably equivalent to the gross amount paid.

Practice Pointer
Many people now have available through employment some type of cafeteria plan where child care costs can be paid from a pre-tax fund. In other words, that employee's taxable income is reduced by the amount he or she elects to set aside in the fund to cover child care costs. This benefit is in lieu of the child care credit and

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