The Other Parent Will Not Comply With Visitation and I Have To Incur Child Care Expenses?
However, upon noticed motion or RFO, the court is empowered to order “financial compensation” for periods when a parent “fails to assume the caretaker responsibility” contemplated by a custody (including joint custody) or visitation order or written or oral agreement between the parents. [Fam.C. § 3028 (also providing for mandatory attorney fee award to prevailing party upon showing of nonprevailing party’s ability to pay)]
Effect: Under this statute, when a parent’s failure to comply with an outstanding custody or visitation orderor agreement results in added child care costs to the other parent, the latter parent is entitled to bereimbursed for the obligations so incurred. [Fam.C. § 3028(a) & (b)]
Most probably, the scenario envisioned by § 3028 is one parent’s incurring additional costs because of the other parent’s “default” under a custody or visitation order or agreement. However, the statute is not expressly limited to parents. (Section 3028 states in relevant part: “
“The court may order financial compensation for periods when a parent fails to assume the caretaker responsibility..."
The compensation shall be limited to (1) the reasonable expenses incurred for, or on behalf of a child, resulting from the other parent’s failure to assume caretaker responsibility..."Fam.C. § 3028(a) & (b).)
This language leaves open the possibility that third parties—e.g., grandparents or other relatives who have temporary care of the child pursuant to the parents’ agreement or court-ordered visitation rights—will have standing to proceed under § 3028. [Cf. Fam.C. §§ 3103(g)(2) & 3104(i)(2)—notwithstanding § 3951, when grandparent visitation is ordered pursuant to §§ 3103 or 3104, court may order parent to pay grandparent (or vice versa) visitation-related “support” costs (transportation, day care, etc). If you are having problems with child care expenses when the other parent does not comply with the visitation schedule, please contact our office for a consultation.