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Unregistered 03:42 AM 01-31-2014
I have been holding a spot for a child since November for an end of February start date. In my state we can have 3 under 2 if one is 15 months and walking. This child will start when 15 months old, but I just found out as of now the child is not walking. I let the mother know on 1/15 that the chil must be walking unassisted.

Now mom has concerns about starting, she says I never mentioned the walking and it's not noted in our agreement(I did in an email and forwarded that to her). Also, they were going to do a drop in today and was giving a one hour window for pickup. I asked for a definite pickup time and mentioned that I was still breastfeeding and needed to know what time pickup would so as not to be in the middle of feeding my son. Well, now she's concerned that her child will be exposed to my breastfeeding. I explained that I cover up, and that the children aren't exposed to anything and during this time I have the kids engrossed in an activity and I sit in another room (with full view of the playroom).

So mom cancelled the drop in and I informed her of still being responsible for payment as she didn't give the contracted 48 hour notice.

She is now very upset that her child's start date may be postponed due to her child not yet walking and that it is not mentioned in the agreement that her child must be walking.

I told her I will waive the holding fee (tuition payments) if child is unable to start due to not walking. We have 4 weeks for him to perfect his walking skills and I'm not concerned, but mom is very upset.

I have a feeling she will want to cancel care, and try to get back the $1600 deposit as I've held the spot since November. How would you handle this situation?
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Leigh 06:20 AM 01-31-2014
You have proof that you informed her of the rule about walking. If she cancels, I would keep the deposit. The issue with breastfeeding is a non-issue to me...you're feeding your child-that's NOT a reason to withdraw in my opinion, and I would think a judge would agree if she tried to sue for the deposit.
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Cat Herder 06:25 AM 01-31-2014
Was she made aware the child must be walking to attend? It would need to be part of the signed contract to be binding, IMHO.

I have never heard of that myself, so see a bit of grey in the enrollment contract. (if going to court)
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Unregistered 08:14 AM 01-31-2014
It is not in the contract but neither is her son needing to be 15 months old, this is something discussed as I wouldn't have a spot available until the child was 15 months old. When they signed up in November he wasn't even a year old, there was no reason to believe he wouldn't be walking.

I'm still holding her spot as it doesn't even start until the end of February and he's already starting to walk, just not unassisted yet. I'm confident he'll be able to start, but even if not, it will be postponed, not cancelled. I f the cancel the agreement, I still kept up my end of the bargain and held a spot and should not have to return the deposit ( especially if they cancel prior to s start date without waiting to see if he is walking). Also my agreement staters that if your child is not able to start daycare for any reason you must begin paying tuition, which I already said I would waive in this case.

She was made aware of it a couple weeks ago, prior to putting down the rest of her deposit (I allowed her to split up the deposit due to it being a large amount bc I was holding the spot for 3 months) now she claims she misinterpreted "that he must be walking unassisted", that it only applied to drop in and not regular care.
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Cat Herder 08:57 AM 01-31-2014
Originally Posted by Unregistered:
It is not in the contract but neither is her son needing to be 15 months old, this is something discussed as I wouldn't have a spot available until the child was 15 months old. When they signed up in November he wasn't even a year old, there was no reason to believe he wouldn't be walking.

I'm still holding her spot as it doesn't even start until the end of February and he's already starting to walk, just not unassisted yet. I'm confident he'll be able to start, but even if not, it will be postponed, not cancelled. I f the cancel the agreement, I still kept up my end of the bargain and held a spot and should not have to return the deposit ( especially if they cancel prior to s start date without waiting to see if he is walking). Also my agreement staters that if your child is not able to start daycare for any reason you must begin paying tuition, which I already said I would waive in this case.

She was made aware of it a couple weeks ago, prior to putting down the rest of her deposit (I allowed her to split up the deposit due to it being a large amount bc I was holding the spot for 3 months) now she claims she misinterpreted "that he must be walking unassisted", that it only applied to drop in and not regular care.
Ok. I agree if she knew in advance that it is on her to lose her deposit and any holding fees. I feel strongly that if you are willing to provide care and they back out, the deposit is yours. That is what a deposit is, after-all.

My concern was your side holding up in small claims court if she takes you. I am still not confident it would. Being ethically right and being legally right are not always the same thing...

I am sure there is a provider here who has been railroaded in court before....
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Unregistered 04:11 PM 02-01-2014
Update: mom is talking about canceling and wants the deposit back because of a few things:
-I no longer have assistants but my enrollment is down, therefore ratio of child to adult is essentially the same. (which she was notified about recently)
-I'm breastfeeding, and she's not comfortable with that, and thinks I should have notified her.
- her child may not be walking by the contracted start date, she thinks I am breaking the contract by not being able to take him if he isn't walking. My contract states that if for any reason your child can not begin care the parents would be responsible to begin paying tuition (I said I would waive this if he can't start due to not walking)
- even after being told her child must be walking unassisted she proceeded to put down the other half of her deposit.

I told her if she cancels before the start date I will not refund any of the deposit. If she waits to see if her son is unable to start and then decides to cancel I will refund 1/2, only due to her knowing full well that he must be walking (mom claims she misinterpreted this to mean only for drop in care, not for regular care) and then putting down the rest of the deposit.

Do I have a legal leg to stand on?

I really believe all my bases are covered.

She's having a change of heart due to my breastfeeding, not having an assistant and that her child must be walking.
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Michael 03:02 PM 02-02-2014
Pushing back up.
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TwinKristi 03:42 PM 02-02-2014
Sheesh, that's a dilemma. The BFing in my opinion is LAME!! That's her choice and not something you misrepresented. You have breasts, are a mother and have a young child. You don't have to advertise that you breastfeed. The assistant deal is another non-issue as you're within ratio and don't require one, again she's changing her mind. The walking issue is really hard to say, the majority of 15 month olds are walking. There's no reason to believe he won't start by the end of the month. That deposit was to hold his place for 3 mos and you weren't able to fill that spot because of her commitment! If she backs out you keep your deposit and she loses it. Like ^^, that's what this deposit is intended for.
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CraftyMom 06:36 PM 02-02-2014
Originally Posted by TwinKristi:
Sheesh, that's a dilemma. The BFing in my opinion is LAME!! That's her choice and not something you misrepresented. You have breasts, are a mother and have a young child. You don't have to advertise that you breastfeed. The assistant deal is another non-issue as you're within ratio and don't require one, again she's changing her mind. The walking issue is really hard to say, the majority of 15 month olds are walking. There's no reason to believe he won't start by the end of the month. That deposit was to hold his place for 3 mos and you weren't able to fill that spot because of her commitment! If she backs out you keep your deposit and she loses it. Like ^^, that's what this deposit is intended for.
The reason I charge a holding fee is the exact reason above, you can not fill the spot and are losing income this whole time. It is non refundable just as payment for a child in attendance is non refundable
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CraftyMom 06:37 PM 02-02-2014
As for the needing to be walking, maybe point it out in your state rules and regulations that it is not your choice, but a regulation that you must follow in order to maintain your license.
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MarinaVanessa 10:28 PM 02-02-2014
Here's the thing and my opinion... you called it a holding deposit not a fee. I really hope that the contract says that the deposit is non-refundable ... as in specifically says that. If not you may have to return it. I never call it a deposit, I call it a holding fee plus say that it's non-refundable. Deposit can be interpreted to mean that you can eventually get it back. For example I require a 2 week deposit for every family and if/when they or I term it is used as payment towards their last two weeks of care so in a way they "get it back" as payment for their last 2 weeks.

I'm also concerned about the part where the contract also doesn't say that the child has to be 15 months and walking to be able to start, this should have been a part of the contract. You may be able to use the email that shows that you told her this (if it goes to court) and I really hope that the judge will see this as enough proof and not side with the mom because she says she misinterpreted so you don't have to return the deposit.

As far as pushing back the start date I can totally see why she would want to cancel now. I know you said that you are willing to push back the date for her and not require payment from her until her child can walk but what if the DCM can't wait after the specified start date on the contract? And here is when I think it gets tough on you ... it's not in the contract. I think it would be up to a judge to decide whether DCM gets the deposit back or not based on whether the judge thinks whether it was you or DCM that breached the contract.

I personally would never give a start date and assume that a child will have mastered a skill by that time because all children are different and there are too many uncontrollable variables. Each child develops at a different pace and on their own developmental time-table. What if the child has developmental delays? What if the child breaks a leg and she can't master walking yet? If walking is a requirement you should only sign a contract for a child that can absolutely walk because some children start walking as early as 9-12 months but some as late as 12-17 months and that is still "normal". If mom has to go back to work by the start date of the contract she has every reason to want to find child care that's a sure deal and lock it in vs risk the possibility of not being able to start child care if her child doesn't walk by the date on the contract KWIM.

As for the breastfeeding ... mom doesn't feel comfortable and feels like she should have been told. You never mentioned it. She's entitled to her opinions and can go somewhere else if she doesn't feel comfortable, that's her right. I think that this is something that should have been discussed but it's no one's fault because neither one of you thought to talk about it. I'm sure that DCM knew you had a baby and should have thought to ask about whether you were nursing or not if she has such a hard time with having her child "exposed" to it and at the same time I think it's also the providers responsibility to bring it up because even though most people are fine with it there are people that aren't.

I know I'm the odd one out here but I was just thinking about this from the perspective of the parent and thinking about what the actual contract says on the business perspective.
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Unregistered 03:21 AM 02-03-2014
Yes, my contract says deposits are non-refundable. I also have a clause saying that if the child is unable to start for any reason tuition payments start (I'm waiving this).

In the future, I will definitely be adding any requirements for care to the agreement. Even if the emails where I notified her of the change in use of assistants, my breastfeeding, and the walking issue don't hold up in court, I believe the language of my contract (see above)covers me.
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Cat Herder 04:33 AM 02-03-2014
Originally Posted by Unregistered:
She's having a change of heart due to my breastfeeding, not having an assistant and that her child must be walking.
I'd bet she isn't so upset about the fact you are breastfeeding as the perception that her child will be left "unattended" while you are holding your own child for a large portion of every day.

Honestly, it will come down to the wording of your contract. We would need the exact wording to be able to give a concrete opinion. Even then it would only be that... an opinion.

Can you maybe consult with an attorney?
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MarinaVanessa 07:04 AM 02-03-2014
Originally Posted by Cat Herder:

Honestly, it will come down to the wording of your contract. We would need the exact wording to be able to give a concrete opinion. Even then it would only be that... an opinion.

Can you maybe consult with an attorney?

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TwinKristi 10:59 AM 02-03-2014
I can definitely understand why she's mad, she may not be able to start back as she planned like MV said. She may have budgeted things just to get to the next payday after starting. Especially if she paid you all this time to hold his spot. I think she truly anticipated starting and this took her by surprise and now she's just looking for any reason to get her money back because she knows the chances are slim.
I agree that it's all going to be up for interpretation by a judge or mediator depending on what happens. Have you heard back from her?
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Unregistered 10:37 AM 02-04-2014
I have not heard from her. She said she would call me next week. She seems to have agreed with the wait and see approach.

For the person who asked about my exact contract language, here are the 2 passages that I believe protect me from having to refund the deposit if she backs out.

Deposits
A non-refundable deposit of 8 weeks tuition, based on the age of your child, is required to hold a spot
for 60-120 days, and will be applied to the first 4 weeks, and last 4 weeks of care.

Holding Fee
If for any reason your child is unable to begin care on the contracted start date, a non-refundable weekly holding fee equal to your weekly tuition payment will be collected in order to continue to hold your spot.
Non-payment of the weekly holding fee will result in forfeiture of the deposit and daycare spot.
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Unregistered 10:30 AM 02-05-2014
I contacted DCM and let her know I have a family member able to take care of my infant outside my home for a few weeks on the days she needs care, therefore, they will be able to start on their start date regardless of walking. I have not heard back yet. Obviously this is not ideal for me or my son as I'm sending to someone else's house while I watch other peoples children at mine, but I'm trying to do my best to not inconvenience this family.

Now let's see if she still tries to back out because of my breastfeeding. If she still tries to back out even though I did everything in my power to have them start on the contracted start date there is no way I will refund the deposit.

Does anyone think a judge would rule in favor of refunding a deposit due to a provider breastfeeding (even under a nursing cover)?
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Michael 06:56 PM 02-06-2014
Pushing this back up...
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JoseyJo 07:26 PM 02-06-2014
Originally Posted by Unregistered:

Does anyone think a judge would rule in favor of refunding a deposit due to a provider breastfeeding (even under a nursing cover)?
Personally I don't think so. I am not a lawyer or anything but unless the contract specifically says you WONT breastfeed I don't see how she could get out of it because you are.
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Unregistered 03:46 AM 02-07-2014
Spoke with DCM, she's definitely backing out because she claims since speaking with me she made other arrangements and now wants her deposit back. She says I misrepresented myself (by making staffing changes and breastfeeding????). She is threatening legal action to get her deposit and to make a complaint about me to the state because she feels unsafe about bringing her child here due to the changes (changes: breastfeeding and staff scheduling, which to make her more comfortable I notified her I would be bringing my assistant back one day per week to help out). Her child has never been in my care, yet she's accusing me of making her feel unsafe about bringing her child.

When we spoke previously she said she would touch base in a week and see where we stand. Within that week I made arrangements for my child to be cared for outside my home so as to still be able to have them start on their start date, no matter what. I am meeting my contractual obligation to hold their spot until their start date.

I have notified my licensor of the possibility of a complaint and everything that has happened and that the parent is backing out due to my breastfeeding and staff scheduling.

I need to learn to follow my instincts when it comes to parents....this one seemed like trouble since I first spoke with her about this spot over the summer. She waffled about signing up for a couple months before committing to the spot. I'm not so sure this business is for me. I love working with kids, but the parents, not so much!
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Nebula 03:11 AM 02-10-2014
Ambiguity in a contract generally works in favor of the signatory, so any grey areas will most likely be interpreted to benefit the signatory, not the drafter. So for future reference, make sure your care contract is specific. The more detailed and specific, the more it works in favor of both parties.
(I have a best friend who is an attorney... he helped me with all my paperwork!) Thank God for best friends who are attorneys
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CraftyMom 05:25 AM 02-10-2014
Originally Posted by Unregistered:
Spoke with DCM, she's definitely backing out because she claims since speaking with me she made other arrangements and now wants her deposit back. She says I misrepresented myself (by making staffing changes and breastfeeding????). She is threatening legal action to get her deposit and to make a complaint about me to the state because she feels unsafe about bringing her child here due to the changes (changes: breastfeeding and staff scheduling, which to make her more comfortable I notified her I would be bringing my assistant back one day per week to help out). Her child has never been in my care, yet she's accusing me of making her feel unsafe about bringing her child.

When we spoke previously she said she would touch base in a week and see where we stand. Within that week I made arrangements for my child to be cared for outside my home so as to still be able to have them start on their start date, no matter what. I am meeting my contractual obligation to hold their spot until their start date.

I have notified my licensor of the possibility of a complaint and everything that has happened and that the parent is backing out due to my breastfeeding and staff scheduling.

I need to learn to follow my instincts when it comes to parents....this one seemed like trouble since I first spoke with her about this spot over the summer. She waffled about signing up for a couple months before committing to the spot. I'm not so sure this business is for me. I love working with kids, but the parents, not so much!
Sounds like you may have dodged a bullet by never having her child in your care, I can pretty much guarantee there would haven more trouble once she started. I need to listen to my gut more as well, parents are the worst! You may want to cut your losses and give her the deposit back
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EntropyControlSpecialist 05:54 AM 02-10-2014
Originally Posted by Leigh:
You have proof that you informed her of the rule about walking. If she cancels, I would keep the deposit. The issue with breastfeeding is a non-issue to me...you're feeding your child-that's NOT a reason to withdraw in my opinion, and I would think a judge would agree if she tried to sue for the deposit.
Bingo.
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JoseyJo 02:40 PM 02-10-2014
Originally Posted by Unregistered:
Spoke with DCM, she's definitely backing out because she claims since speaking with me she made other arrangements and now wants her deposit back. She says I misrepresented myself (by making staffing changes and breastfeeding????). She is threatening legal action to get her deposit and to make a complaint about me to the state because she feels unsafe about bringing her child here due to the changes (changes: breastfeeding and staff scheduling, which to make her more comfortable I notified her I would be bringing my assistant back one day per week to help out). Her child has never been in my care, yet she's accusing me of making her feel unsafe about bringing her child.

When we spoke previously she said she would touch base in a week and see where we stand. Within that week I made arrangements for my child to be cared for outside my home so as to still be able to have them start on their start date, no matter what. I am meeting my contractual obligation to hold their spot until their start date.

I have notified my licensor of the possibility of a complaint and everything that has happened and that the parent is backing out due to my breastfeeding and staff scheduling.

I need to learn to follow my instincts when it comes to parents....this one seemed like trouble since I first spoke with her about this spot over the summer. She waffled about signing up for a couple months before committing to the spot. I'm not so sure this business is for me. I love working with kids, but the parents, not so much!
I may be the odd one out here but I would NOT give her back her deposit/holding fee. If she sues you the most she would get was her holding fee back, and you may have to cover part of a day to go to court, right? You don't have to hire a lawyer, just go per se (representing yourself). I have done that a few times, it wasn't hard at all.

As for her turning you in to licensing, as scary as that is there is no way anything would happen. I doubt they would even come out as her child never had the chance to be "unsafe" with you, and breastfeeding and staffing changes w/i your ratio are not reasons for the state to investigate you. If they do come out so what? They will look around, (mine would joke w/ you about how crazy dcm is) and leave.

I think it may be a different issue if you had refused to let DCB start due to his non-walking, but you found someone to watch your own son so you could watch her son until he started walking. As for her not wanting to start him due to staffing and breastfeeding I stand firm that it is (IMO) unlikely a judge would rule that breach of contract unless your contract specifies # of caregivers/ratio, or non-breastfeeding.
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Margarete 04:27 PM 02-10-2014
Canceling for breastfeeding would not go over well. I found it interesting that in some states asking a mother to stop, move elsewhere, or even cover up is a violation of her civil rights. I think she would be on the wrong side of the law for even listing this as a reason to try to get her deposit back.
http://www.babycenter.com/404_is-it-...public_8939.bc
What state do you live in?
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Margarete 04:43 PM 02-10-2014
Originally Posted by Cat Herder:
I'd bet she isn't so upset about the fact you are breastfeeding as the perception that her child will be left "unattended" while you are holding your own child for a large portion of every day.

Honestly, it will come down to the wording of your contract. We would need the exact wording to be able to give a concrete opinion. Even then it would only be that... an opinion.

Can you maybe consult with an attorney?
This shouldn't (I know it *could*) be seen any different then feeding a baby with a bottle. Most people I know hold babies while feeding them (their own and babies in their care).
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Unregistered 05:57 PM 02-10-2014
Originally Posted by Margarete:
Canceling for breastfeeding would not go over well. I found it interesting that in some states asking a mother to stop, move elsewhere, or even cover up is a violation of her civil rights. I think she would be on the wrong side of the law for even listing this as a reason to try to get her deposit back.
http://www.babycenter.com/404_is-it-...public_8939.bc
What state do you live in?
I'm in MA.
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TheGoodLife 07:28 PM 02-10-2014
I sure hope you don't give any refund. Print and keep any documentation (texts, emails, ect) of conversations you have to prove that you held up your end of the contract and you should have no problem. If you send her a highlighted copy of what you have in your contract AND your copy of communications where you were honoring the original start by modifying your own child's arrangement, I'd bet she'll back off- she must know shed have no legal ground to stand on. Maybe throw in a legal document about the right to BF to boot sorry that is happening to you!
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TwinKristi 10:08 PM 02-10-2014
Originally Posted by Mama2Bella:
I sure hope you don't give any refund. Print and keep any documentation (texts, emails, ect) of conversations you have to prove that you held up your end of the contract and you should have no problem. If you send her a highlighted copy of what you have in your contract AND your copy of communications where you were honoring the original start by modifying your own child's arrangement, I'd bet she'll back off- she must know shed have no legal ground to stand on. Maybe throw in a legal document about the right to BF to boot sorry that is happening to you!
I agree with this. I would call her bluff and let her sue you.
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Margarete 11:15 PM 02-10-2014
Here is a link to MA specific breastfeeding law language
http://breastfeedinglaw.com/state-laws/massachusetts/
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TheGoodLife 05:20 AM 02-11-2014
Originally Posted by Margarete:
Here is a link to MA specific breastfeeding law language
http://breastfeedinglaw.com/state-laws/massachusetts/

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Unregistered 05:49 AM 02-11-2014
I've already told her I will not be refunding her deposit as I made every effort to meet her start date. I also informed her that she signed an agreement that states deposits are nonrefundable. She then sent me a withdrawal letter, which may even be helpful if she does decide to sue for the deposit.

I am definitely holding my ground here...I've turned away 2 different families that were interested in this spot and now I am out the income for this spot.

She is consulting a lawyer about all this, I can't see any lawyer looking at everything and then telling her to sue, it will just cost her more money. Also, she owes for a drop in day that she cancelled without the contracted 48 hours notice and I will be counter suing for that amount if she takes me to court.

This pant has been a nightmare from day one, ugh!
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Tags:choose appropriate childcare, contract - clear, deposit agreement, ratio, ratios, small claims court
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