Intellectual Property Law

Virtual Visitation

By IBLS Editor

"Virtual visitation" is a way for divorced parents to communicate with their children via electronic means. In the United States, legislatures and courts are increasingly recognizing virtual visitation as a means for non-custodial parents to communicate with their children. Following, there is information about this modern concept. This article provides information on how the "virtual visitation" concept has been interpreted by state courts and what states have adopted legislation that incorporates this technological way of child-parent communication.

"Virtual visitation" is a way for divorced parents to communicate with their children via electronic means. State laws recognize various methods of virtual visitation, including personal video conference, Web cam, and video phone. Other methods include e-mail, chatting in a private chat room, instant messaging, and interactive game-playing between parent and child from remote computers.

Utah was the first state to codify the concept of virtual visitation. It defines "virtual parent-time" as visitation that is facilitated by tools such as telephone, e-mail, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media. These electronic methods of contact supplement in-person visits between a non-custodial parent and a child or between a child and the custodial parent when the child is staying with the non-custodial parent. Wisconsin has also adopted legislation in this area. The Wisconsin statute similarly considers the availability of electronic communication as a factor in determining custody and parenting time. On the other hand, Wisconsin''''''''s parental relocation statute specifically provides that a court may not use the availability of electronic communication as a reason to support the modification of a physical placement order or the refusal to prohibit a move. Virtual visitation legislation has now been introduced in Missouri, Ohio, Illinois, Virginia, and Florida. Bills also have been drafted in California, Georgia, Maine, Maryland, Minnesota, New York, North Carolina, Tennessee, Texas, and West Virginia.

Case law has also established virtual visitation in various jurisdictions. For instance, in McCoy v. McCoy, 764 A.2d 449 (NJ Super. Ct. App. Div.2001), the mother petitioned the court to allow her to relocate to California so that she could accept a permanent job with health benefits. She proposed a visitation schedule that would provide the father with the same number of total days with the child, but would group those days around the child"s school vacation schedule. She also proposed setting up a Website with streaming video that would allow the father and the child to see each other in real time over the Internet. The father opposed the move, arguing that it was not in the child''''''''s best interests and that it would damage his relationship with his child. The appellate court disagreed and allowed the mother to relocate. The court noted that whenever a custodial parent moves to a distant location, the ability of the non-custodial parent to exercise visitation is adversely affected. That fact alone, however, may not be contrary to the best interests of the child if an alternate visitation schedule continues and preserves the relationship between the child and the non-custodial parent. The court deemed the mother''''''''s suggested use of the Internet to enhance visitation as creative and innovative. A key factor in the McCoy case was that the non-custodial father would have the same or greater number of total days with the child. The Internet merely supplemented visitation.

In Arriaga v. Gambardella, No. FA990431585S, (Conn. Super. Ct. Aug. 6, 2002), a Connecticut court ordered the parties to explore the use of the Internet for virtual visitation or online conferencing. Each party was responsible for its own expenses in purchasing a computer and related hardware and software, as well as obtaining and maintaining Internet access. In Hernandez-Mora v. Jex, No. 001-WY-100g-CB (D. Colo. July 12, 2001), the child and father lived in Spain while the mother remained in the U.S. The father was required to provide an appropriate computer and service plan for the mother that maintained necessary service upgrades and a DSL line (or greater quality bandwidth) for two years, and to create and maintain a Website with the child''''''''s schedules, activities, pictures, and information. Additionally, the father was required to ensure that the child''''''''s and mother''''''''s privacy were protected.

Commentators have expressed concern that, instead of merely supplementing personal contact, virtual visitation will eventually be used to limit it. For example, in a 2002 Massachusetts case, Cleri v. Cleri, (Mass. Probate & Family Court, No. 01D-0009-D1, 2002), the trial judge awarded the ex-wife custody of her three small children and gave her permission to move the children to New York. While the husband was granted two weekend visits a month, he also would have virtual visitation on Tuesdays and Thursdays from 6 to 7 p.m. The judge ruled that computer conferences are inexpensive and would allow the ex-husband to read to his children and help with their homework. Critics have claimed, however, that the court was substituting virtual time for real time, to the detriment of the father.

The Utah and Wisconsin legislation specifically provide that virtual visitation is in addition to, not instead of, personal contact. Legislation is needed simply to make judges aware of their options. Virtual visitation is not a justification for the relocation of the custodial parent, but it is a factor the court can consider when determining how the parent-child relationship will be affected by custodial parent relocation, allowing the parent and child to communicate on a more regular basis.

Case law indicates that courts generally support virtual visitation as a supplementary means of communication, normally, the relocating parent bears the expense and responsibility for providing the physical capacities for virtual visitation.

With the increasing use of virtual visitation, legislatures and courts are providing for electronic means of communication between non-custodial parents and children. The key proviso is that virtual visitation may not replace actual visits or serve as grounds for awarding custody.

Full post as published by IBLS Internet Law Blog on January 25, 2010 (boomark / email).