So instead of taking the child to daycare,that you are paying for, she is keeping the child in her care?
Likely the way a court would resolve such a matter would be to first examine if it is in the child's best interests to be spending this additional time with the mother, rather than at a daycare. Generally, the court will be of the view at the outset that it is better for a child to be with a parent, rather than with a third party daycare. The presumption legally is that courts should maximize time of children with their parents. So even if the daycare is top-notch and the child is very happy there, a court would likely conclude that the child should be with her mother instead of such a daycare.
That presumption can of course be set aside if there is some other evidence to indicate that the child is having problems in her mother's care or so on. But absent that, the most common outcome in such a situation would be the court could say that the custody and access order/agreement can be amended to have the child be in the mother's care at such times. No order regarding child custody or access is ever permanent and fixed, and the court always has authority to amend such an order if new circumstances develop and it concludes an amendment is in the best interests of the child.
And if that amendment of parenting times is the outcome, then clearly the payment of the daycare expense by you could cease.
If the court concludes that there should be no amendment, then it will expect the mother to comply with the order, giving the child back into your care, or to the daycare you arrange on to care for the child on your parenting time. If she is not complying, the court has a number of options, such as fining her, making her pay your court costs, ordering the police to intervene as necessary to enforce the return of the child, and suspending or putting restrictions on her parenting times.
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