Coming to a State near You: Development of Virtual Visitation Legislation

July 12, 2011Articles The Legal Intelligencer

Virtual visitation is the use of electronic communication — through Skype, e-mail, webcams, instant messaging and other similar online tools — to provide regular access for noncustodial parents to their children. Nearly 10 million children live without face-to-face interaction with one of their parents. Studies show children whose parents relocate after a divorce, resulting in one parent living more than an hour away, are significantly less developed mentally and physically than children whose parents do not relocate. Psychologists have determined that in order to establish and maintain a bond, young children should have frequent and ongoing parental contact.

In addition to face-to-face visits, virtual visitation can facilitate communication between noncustodial parents and their children by allowing them to have more meaningful interactions regardless of distance, traveling or long work hours.

While virtual visitation has been praised as an innovative way to keep parents and children connected, there are downsides. For divorced parents who do not live far apart, virtual visitation requirements may interfere with the other parent's parenting time. It may also potentially encourage parents to relocate after a divorce and provide courts with a justification to allow relocation, and it may lead to custodial parents cutting down the other parent's visitation time with the child. The feasibility of virtual visitation will also change over time as children lose the attention span to sit for a visit and become involved in extracurricular activities. Another concern is the accessibility low-income parents have to the Internet and online tools. Critics have often purported you cannot hug a computer.

Nevertheless, virtual visitation is being incorporated into many parenting agreements and orders. Common issues being addressed in such parenting agreements include: who pays for the necessary equipment, services and Internet connection, the level of privacy given to the child and virtual parent during their conversation, and sanctions for noncompliance.

The technology necessary to implement virtual visitation is relatively affordable and widely available. Building the virtual visitation system from the ground up can cost around $700, but if the parent already has access to the Internet, it can be inexpensive. Parents who are unable to purchase a computer, Internet and webcam may be able to use technology available at local libraries. Unfortunately, families who cannot afford a computer and do not live near a public library with a webcam would not benefit from virtual visitation.

Utah was the first state to pass virtual visitation legislation, largely due to the efforts of Michael Gough. Gough's ex-wife wanted to relocate with their daughter to Wisconsin, which led him to ask the judge for virtual visitation. The judge granted his request after Gough demonstrated in the courtroom how he could use a webcam to see and talk to his daughter. The judge later told Gough that normally if a requested form of relief was not in case law, statute or rule, he would not grant it, but the presentation persuaded him to award Gough virtual visitation. Gough's experience with virtual visitation led him to speak to the family law section of the Utah Bar Association and begin working with legislators on a bill.

As a result, the Utah statute now sets forth that "liberal virtual access be permitted and encouraged between children and a noncustodial parent" if available. Virtual parent-time is defined as "parent-time facilitated by tools such as video conferencing, web cams, e-mail, instant messaging and other wired or wireless technologies over the Internet or other media, including a television with DSL cable, to supplement in-person visits and telephone contact between a noncustodial parent and a child." The statute acknowledges that virtual parent-time is designed to be a supplement to regular parent-time.

In 2006, Wisconsin became the second state to enact virtual visitation legislation and defines "electronic communication" similar to Utah. The Wisconsin statute provides that after a party requests electronic communication, the court make a determination of whether it is in the child's best interest, how the child will be able to contact the noncustodial parent, and what electronic communication, if any, the parent may utilize. The court must also consider whether the equipment is reasonably available to both parents.

Additionally, the statute states electronic communication may only be used as a supplement to the parent's periods of physical placement with the child. If the child's visits with the noncustodial parent are normally supervised, the statute also requires supervision for electronic communication. The statute provides that the availability of electronic communication may not be used as a factor in support of a refusal to prohibit a move or in support of a modification to the physical placement order.

In 2007, Texas and Florida passed virtual visitation statutes. The Texas courts must consider three factors when determining whether to award electronic communication: whether it is in the child's best interest; whether the necessary equipment is reasonably available to all parties; and any other factor the court deems appropriate.

This section also states the court "may not consider the availability of electronic communication as a factor in determining child support" because it is not intended as a substitute for physical possession of the child. Finally, this section provides that when the court's order contains a finding of family violence and requires supervised visitation, the electronic communication must also be supervised or subject to any other specific restrictions relating to family violence.

Similar to Texas, Florida's statute provides that a court may order electronic communication, but before doing so, the court must consider four factors: whether it is in the child's best interest; whether the equipment is "reasonably available, accessible and affordable;" whether either parent has a history of substance abuse or domestic violence; and any other factor the court decides is material.

The statute also creates a rebuttable presumption that it is in the best interest of the child to have reasonable telephone communication and authorizes the court to allocate the expenses that will be incurred in setting up the electronic communication system after considering each parent's financial circumstances. The statute will allow the availability of electronic communication to be considered as a factor for relocation, though it may not be the "sole determinative factor." The amount of time that electronic communication is used or ordered may not be considered by the court when calculating child support.

North Carolina and Illinois became the most recent states to enact virtual visitation legislation. North Carolina's statute authorizes courts to provide for visitation rights by electronic communication and requires courts to consider three factors: whether it is in the child's best interest; whether the equipment is "available, accessible and affordable" to the parents; and any other factor the court deems appropriate.

Courts are authorized to set guidelines regarding the hours, cost allocation and the provision of access information. The statute further provides that electronic communication may only be used as a supplement and not a replacement for custody or visitation. The court may also order supervision of electronic communication. Finally, the amount of time spent using electronic communication may not be factored into child support calculations nor may it be used to "justify or support" relocation by the custodial parent.

Under the Illinois statute, visitation means both in-person time and electronic communication. The court determines the conditions and times that electronic communication will be permitted. Grandparents, great-grandparents and siblings are also allowed to file a petition for electronic communication rights in a pending custody proceeding. The statute does not allow the court to use availability of electronic communication as a factor in support of relocation.

There are a number of trends evident in these statutes. Wisconsin, Texas, Florida and North Carolina all ask the court to weigh three factors, with Florida adding a fourth about the parents' histories of drug abuse or violence. Wisconsin, Texas and Florida set forth that if in-person visits are required to be supervised, then electronic communication should be supervised. Wisconsin, North Carolina, and Illinois do not allow a court to consider the availability of electronic communication when determining whether the custodial parent can relocate. Conversely, Florida allows the court to consider the availability of electronic communication as a factor so long as it is not the sole factor. Texas's, Florida's and North Carolina's statutes set forth that courts may not consider electronic communication time when calculating child support. Florida and Texas take into account the role that family violence may have with electronic communication. Finally, Illinois's statute allows grandparents, great-grandparents and siblings to file petitions for electronic communication rights.

Several other states that have considered or adopted legislation have removed proposed language that would grant virtual visitation rights to grandparents, or refused to link virtual visitation language to sections of statutes dealing with grandparent visitation rights. Although some family law experts believe legislation is unnecessary, the way in which these six states have chosen to authorize courts to order electronic communication shows there are some public policy concerns that may vary among judges if left solely up to the courts to decide.

Virtual visitation legislation has been introduced in Ohio and Virginia and bills have been drafted and are awaiting sponsors in California, Georgia, Maine, Maryland, Minnesota, New York, North Carolina, Tennessee and West Virginia. Additionally, an organization created by Gough to promote and lobby virtual visitation has pre-draft bills for 22 states, including Pennsylvania, that need local sponsors.

While virtual visitation can be ordered by any court as long as it complies with its state's statutes and policies, legislation may be needed for a number of reasons. First, legislation raises awareness amongst bench and bar members, who may be unfamiliar with or critical of utilizing virtual visitation in parenting plans. Second, legislation provides a set of guidelines for parents, attorneys and judges to follow when addressing electronic communication terms. Legislation also normalizes and legitimizes the use of virtual visitation, making it more easily attainable for parents in highly contested custody cases. This reduces transaction costs by preventing excess litigation over an issue already decided by the legislature.

Finally, by creating virtual visitation legislation, legislatures make the policy decisions rather than judges, thereby setting forth uniform parameters for the consideration of virtual visitation.

Proponents of virtual visitation legislation stress that it cannot be used as a replacement for face-to-face contact, but it functions as a great supplement to regularly scheduled visits. Parents can read books to their children, help them with homework or simply leave the video on while the child plays, providing noncustodial parents with a window into their child's day-to-day life.

Gough stresses the importance of using virtual visitation as a way to fill periods of time between visits. When his daughter was younger, virtual visitation helped maintain her familiarity with him to make their in-person visits all the more meaningful and also served to reduce stress caused by the transitions that accompany a custodial exchange. Though he recognizes the limitations of virtual visitation, Gough responds to critics by saying, "You can't hug a computer, but you can't hug nothing."

Lauren Winchester, a summer associate with the firm, assisted in developing this article.

Reprinted with permission from The Legal Intelligencer. (c) 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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