Virtual visitation heats up

By Correy E. Stephenson
Staff writer

Published: September 11, 2009

Tags: visitation

Family law practitioners are increasingly turning to virtual visitation as an essential option in custody cases.

With society more mobile, and the technology easier to operate and more affordable, virtual visitation "is a wonderful opportunity for a parent who doesn’t see his or her child or children," said Mitchell K. Karpf, a partner at Young Berman Karpf & Gonzalez in North Miami Beach, Fla. and chair of the ABA Family Law Section.

"Letters are ok and phone calls are nice, but seeing them live over a webcam is the next best thing" to an in–person visit, he said.

In August, legislation went into effect in Illinois permitting computer visits and other electronic communications between children and non–custodial parents.

Several other states have also passed legislation in recent years, including Florida, North Carolina, Texas, Utah and Wisconsin, and bills are pending in Missouri and Ohio.

Virtual visitation includes a variety of media communications over the Internet, such as instant messaging, video conferences, video calls or video mail, and can encompass other electronic communication such as e–mail or texting as well.

Jeffrey M. Leving of the Law Offices of Jeffrey M. Leving in Chicago, who co–authored the Illinois legislation, estimated that virtual visitation arises in approximately half of the divorce and custody cases his firm handles.

He said it is especially valuable to the average parent who may not be able to afford frequent visits.

"Now a non–custodial parent can still be a consistent presence in their children’s lives," Leving said.

Stephen Harhai, a family law practitioner in Denver, Colo., agreed.

Electronic communication, such as texting or e–mail or using a webcam, "is such a pervasive means of communication for kids in our society, it tends to add an air of normalcy and immediacy of communication in their relationship with a non–custodial parent," he said.

Judicial approval

In Florida, where legislation went into effect last October, the statute covers all forms of electronic communication and clarifies the issue for the state’s family law judges, said Karpf.

"Some judges thought they could allow it; others thought they couldn’t or wouldn’t do it because it wasn’t in black and white in the statute," he said.

States that do not have virtual visitation legislation in place can rely upon the broad discretion accorded to family court judges.

Sondra Harris, a sole family law practitioner in Woodmere, N.Y., represented a non–custodial father who lived in New York and sought virtual visitation because his daughter, who lived in Washington, was deaf.

"The child couldn’t have telephone contact with the parent, but they both knew sign language," Harris said, so they could communicate by videoconference.

Although New York doesn’t have legislation in place, she said the family law judge approved the order.

But sometimes, "judges are not going to do what hasn’t been clearly authorized by statute or case law," noted Leving, especially in a contested case. Legislation can encourage judges to order this type of contact between a non–custodial parent and his or her child, he said.

All types of cases

Virtual visitation is most common in cases where the non–custodial parent lives in a different country or state than his or her child or children.

But it also makes visitation possible between a child and an incarcerated parent, noted Leving, the author of "Divorce Wars" and "Father’s Rights."

Karpf said that virtual visitation can also be used in cases where domestic violence was an issue.

Because "the violence may prevent face–to–face contact, the parties can use a webcam and still maintain contact," he said.

Virtual visitation can be beneficial in cases where a parent travels extensively or remains in–state but lives a significant distance away. It can also be used as a way to supplement in–person visits.

And because the term encompasses so many forms of electronic communications that both parents and older children use on a daily basis — such as e–mail or instant messaging or texting — it can even be used in a case where the parents reside in the same city.

Factors to consider

An attorney should consider several factors when crafting the visitation order.

Leving urged practitioners to specifically include items like e–mail and web visits because in his experience, "if you don’t include it, it will be excluded."

"If you do not have specific dates, times [and] the length of the contact and everything isn’t spelled out, [the non–custodial parent] will lose out," Leving said. "Any ambiguities are interpreted in favor of the custodial parent."

But Harhai cautioned that, like any other issue in a contentious divorce, the other parent can sabotage virtual visitation by claiming the computer isn’t working or the Internet connection is down, no matter how specific the arrangement is.

Issues to address include:

• Privacy (Is the custodial parent allowed in the room during a webchat?);
• Cost (Should the non–custodial parent pay for the cost of Internet connection or a new laptop?);
• Enforcement (Will there be penalties if the non–custodial parent can’t connect with the child?); and
• Form of communication (What types of communication will be used
• e–mails, texts and/or a website for shared pictures and information?).

The specifics will vary based on the age of the children, the technological savvy of the parents (and child or children) and the nature of the parents’ relationship.

The technology has become even simpler over the last few years, Harhai noted, as almost all laptops now include built–in webcams.

Also, the cost of a broadband Internet connection has continued to fall and most households have it. And there are many options for connection via a website, or using SKYPE or Yahoo.

"For most people, virtual visitation won’t require any additional cost," Harhai said.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com