LEGAL GUIDE
Written by attorney Sean Martin Mccumber | Oct 19, 2010

Virtual Visitation: The Who, The What, The How, & The Where Of Long Distance Parenting

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 (95th 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)

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