Virtual Visitation: The Who, The What, The How & The Where

As our society continues toward mobility and connectivity, the changing concept of visitation moves with it. Job relocations and remarriages, as well as tough economic times, have increased the possibility of a parent seeking Court permission to remove a child or children from the State of Illinois. How do we, as lawyers, address the issues of parenting over distances? Virtual visitation is one such possibility. Virtual visitation involves the use of telephones, voice-chats, online web and video conferencing, emails, and other technological advances to keep parents and children in contact with one another.

LEGISLATION

Four states currently have statutory provisions for virtual/electronic visitation and parenting time: TEXAS, UTAH, FLORIDA, and WISCONSIN.

Possible legislation remains pending in: CALIFORNIA, ILLINOIS, MICHIGAN, OHIO, SOUTH CAROLINA, NEW JERSEY (and other states).

ILLINOIS: Illinois House Bill 3486 (95^th General Assembly). Would amend Sections 607 & 609 of the Illinois Marriage and Dissolution of Marriage Act. This bill remains in the Rules Committee and has so remained since March of 2007.

Synopsis: Provides that upon motion by either parent, the court may grant a reasonable amount of electronic communication at reasonable hours to a parent at times during which the child is not in the parent's physical custody. Defines electronic communication, without limitation, as telephone, a webcam, electronic mail (e-mail), instant messaging, video conferencing, or other wired or wireless technologies via the Internet or another medium of communication. Provides that the court may not use the availability of electronic communication as a factor in support of the request of a custodial parent to remove a child from the area or the State (nor shall its availability be used as a factor in modifications of custody or visitation), and that the parent seeking removal shall be responsible for the costs of providing any court ordered electronic communication equipment.

CASE LAW

Gilbert v. Gilbert, (2007 ND 66). In a North Dakota case the mother wished to relocate to West Virginia. The relocation with the child was appealed after being denied by the District Court. The move was granted by the Appellate Court. Virtual Visitation was discussed, specifically discussing our efforts and laws and not found to contribute to allowing the move-away. The relocation was granted by the appellate court, which directed the trial court to revisit its findings about crafting a workable visitation schedule.

Armstrong v. Armstrong, Docket No. FA010828168-S (Hartford Super. Ct. July 25, 2002). The court concluded that the plaintiff mother should be designated as the primary physical custodian and that relocation of the children to Chicago will be in the best interest of the children. In addition to the traditional modes of visitation, the Court suggested the parties consider Internet visitation or videoconferencing between the children and the defendant father.

Hernanadez-Mora v. Jex, No. 01-WY1009-CB (U.S. Dist. Ct. Dist.Colo. July 12, 2001). Two parents agreed on joint custody and decision-making, even though the father and child moved to Spain while the mother remained in Colorado. The agreement details how the technology will be used, who pay for what and the practical considerations about topics such as what type of Internet connection. The Court ordered the father to pay for and provide the other, noncustodial parent with a computer and service plan for video conferencing, and directed the father to be responsible for all costs and expenses for future upgrades, and to pay for or DSL, or greater quality, connection for the noncustodial parent for two years.

In re Marriage of Thiegles, 623 N.W. 2d 232 (Iowa Ct. App. 2000). The Court ordered that the respondent shall also have liberal telephone privileges and Internet communications with the minor children if they have it available to them.

Chen v. Heller, 759 A. 2d 873 (N.J. Super. Ct. App. Div. 2000). Custodial parent moved with two daughters to Texas from New Jersey. Each party ordered to set up video conferencing in their respective homes at their own cost Unlimited phone calls, computer access, and video conference calls Custodial parent was required to give non-custodial parent "thirty to forty-five days notice of any and all special events for the children. If the non-custodial parent is unable to attend the event, [the custodial parent] will videotape the event and send the tape to the non-custodian.

McCoy v. McCoy, 764 A.2d 449 (2001). The New Jersey Superior Court allowed a mother and child to relocate after looking at a proposal for "virtual visitation' to supplement periodic in-person visits. In this case, the mother wanted to move from New Jersey to California. The judge approved her plan for web-based communication via camera-computer technology and daily emails, calling it both creative and innovative." McCoy, at 454. Importantly, the "virtual visitation" was in addition to the personal visitation schedule, which was not reduced. Mother moved from New Jersey to Texas with 10-year old "special needs" daughter with neurological impairments - hemiplegic, trouble using hands and legs, visual impairments and seizures. Mother offered to build web site, which would include the use of camera-computer technology to give the father, his family and friends, the ability to communicate directly with the child on a daily basis and review her school work and records. Father to have daily communication with daughter by video conferencing.

Lazarevic v. Fojelquist, 668 N.Y.S. 2d 320 (1997). In New York, a custody dispute developed between parents when the mother (custodial parent) wanted to move to Saudi Arabia. The court ordered the parties to use the Internet as a means of direct communication between the father and the child. The Court reluctantly allowed a custodial parent to move with a six-year-old son and new spouse to Saudi Arabia. The Court ordered the mother to propose a reasonable schedule of communication by telephone, Internet, and fax and shall provide proof that those systems are fully operational and that the dedicated phone lines are in place. 668 N.Y.S.2d at 327-28.

Burke v. Burke - In another case in Tennessee, the Court of Appeals called the Internet-based plan an "unique, forward thinking and viable communication alternative." The case includes details on the plan, which the appellate court affirmed (while still noting the poor behavior exhibited by the parties). Burke v. Burke, 2001 WL 921770 (Tenn. Ct. App. August 7, 2001) (attached to this Presentation).

VIRTUAL VISTATION & E-PARENTING METHODS

Telephone Communication (including Text Messaging)

The telephone is still one of the easiest means of virtual visitation between parents and children. The advance of the cellular phone has made calling even easier. Many parents provide their children with cellular phones already, which provide for instant communication with parents via phone and via text messaging. For some parents, giving young children a cellular phone is not considered a viable option. Too much responsibility. Too easy to lose. Too much temptation for young children. Is there another answer?

The Firefly is a cellular phone designed to give parents peace of mind and children assurance that they can stay in touch with the people that matter most (without having to remember any numbers). There are five keys on this phone "Begin Call" button (visualized by a green phone), "End Call" button (visualized by a red phone)' "Address book" button (visualized by a blue open book), "Call Mom" button, "Call Dad" button, and a 911 button (visualized by small button with a cross) The phone also offers a call screening option which, when activated only allows the numbers that are in the phones memory to call that phone. While these phones have great practical uses, the somewhat "cheesy" design may make teenagers avoid this phone entirely, frustrating the point of the Court in using this technology for virtual visitation in contested divorce cases.

Standard Electronic Communication (Email and Instant Messaging)

Parties can still obtain free email accounts from Yahoo.com and Gmail.com, which can be set up to ensure that no one abuses work email accounts, etc. It does however, lack the sense of real-time communication, as well is being hacked or invaded by outside sources. Another form of real time interaction includes instant message programs, such as such as Yahoo Instant Messenger, AOL Instant Messenger, and MSN Messenger. These programs function like a chat room allowing each party to type messages to the other that can be seen as soon as the message is posted in real time. The benefit of these programs is that they can alert a person when another participant is online. It has the potential to allow parents to spontaneously communicate with their children in addition to having regularly scheduled contact. The drawback instant message programs is that they may limit contact to those children that are old enough to spell and type messages. Cost, other than having an internet connection, is minimal for this form of virtual visitation.

The drawbacks? Technology still relies on cables and wires and satellites. When weather interferes, the visitation suffers. Also, parents can be fickle and sometimes, a parent may monitor communications with the other parent and the child. Although this should not be done, it does happen. Which, in turn, causes parents to fear that what they say may end up as fodder for future litigation (which is the subject of another presentation on using electronic evidence).

Webcams, Video Conferencing, and Internet Conferencing

Many of the instant message programs previously mentioned are currently integrating video conferencing and voice conferencing into their programs. This means that two people in two different locations may communicate in real time by voice and video. This type of virtual visitation does require additional equipment, however, including a high-speed connection (like DSL or a Cable Modem), a webcam, a headset. a microphone, and the proper software. Once these are in place, a parent is able to have a completely interactive video phone call where he/she can and hear the child(ren) with real video that is clear crisp and audio that is as good as a telephone call. The following sites have secure video calling so that parents and children may have the chance to communicate visually, in additional to speaking, over long distances: http://www.internetvisitation.net/; and http://www.internetvisitation.org/.

Skype.com is a software program that allows users to make calls over the Internet to other Skype users free of charge. Calls to landlines and cell phones can be made for a modest fee. Additional features include instant messaging, file transfer and video conferencing. It has some security issues, which why it is not an expensive program, and which causes some concern for parents.

Cost is always an issue. Parties should consider this when entering into agreements. Courts must consider the cost when addressing custody and removal issues at trial.

E-calendars and Private Document Sites

E-parenting is not only for children. Sometimes, long-distance parenting requires the parties to find innovative ways to keep in touch about the events and activities in children's lives. Sometimes, the parties simply cannot or are unwilling to communicate. E-parenting communication websites are an option for these cases.

Ourfamilywizard.com allows parents to, in a secure setting for a nominal annual fee, post event calendars, notify the other parent of expenses and invoices for payment or reimbursement (provides proof of date sent), request parenting time changes, notify the other parent of appointments, and updates to contact information.

Sharedground.com is a software site that allows parties to purchase a calendar creation program that assists parties and lawyers in crafting parenting time schedules.

Facebook.com / Myspace.com / Yahoogroups.com are social interaction/ networking sites. Although they are more for networking, they have a blog function and email capabilities that can make information exchange possible. They allow users to share photos and designate who can view those photos. Recent changes to state and federal law have increased the privacy of these sites from outside interference. Yahoogroups.com allows site creators to post files to the group, which could include bills, school notices, photos, and so on.