By Elaine M. Stoermer
Dayton Bar Briefs, VOL.LIII, Number 4
Parents of a daughter, age 10, get divorced. Dad lives in Florida; mom lives in Ohio. Dad gets custody. Mom gets parenting time with child at Christmas, Spring Break, and summer – but it’s not really enough. Court also orders Internet visitation by ordering that child is to have computer and unrestricted use of computer for e-mail and video-conferencing. Ouila! Virtual visitation. And all dad had to do was purchase a computer system for a mere $1,200.
More and more courts have ordered parents to obtain the technology and set up a communication schedule between parent and child using the Internet. More and more courts are using this technology to address issues in relocation cases. Thus, where a parent may have previously risked a modification of custody if he/she moved out of state with the child, the parent may now be required to purchase dedicated phone lines, state-of-the-art computers with video-conferencing ability and software, webcams, scanners, and bedroom furniture accommodating the hardware and software necessary for private and easy communication with the non-relocating parent. And the parent may even need to hire someone to teach the child how to use all this equipment or someone to set up a website for the child. While this high-tech option may accomplish “frequent and continuing contact” between an out-of-state parent and child, it is not for the lower income parent or the technically- challenged parent and child. It may work for those who can afford it and are computer savvy.
Why?
Ohio’s parenting time statute, R.C. §3109.051 provides that when a court allocates parental rights “[w]henever possible, the order or decree permitting the parenting time shall ensure the opportunity for both parents to have frequent and continuing contact with the child, . . .” When the parents live in locations that make the typical alternate weekend visitation impractical or when a parent relocates out of state, the use of a computer with instant messaging, scanned pictures, collaboration ability, and webcams provides for the “frequent and continuing contact” between parent and child. The authors of Ohio’s statute may have considered long-distance telephone service as the only option available for “the next best thing to being there” medium. But technology has progressed from rotary dial to the Internet, to picture phones, to TVphones.
What?
When a non-residential parent can’t reach out and touch the child with face-to-face parenting time, then he/she can use an interactive communication medium that allows two people at different locations to see and hear each other at the same time: video conferencing. If it is good enough for business and e-commerce to use for meetings with customers or staff located in various states, then parent and child should have its capability for continuing and enriching the parent-child relationship. This is more that a webcam and would be outside most parents’ budgets.
The other option is a webcam that provides sight and sound with the child but with some distortion. You need a computer (PC) and a webcam plus a scanner. And a knowledgeable consultant/sales person to hook you up to the current extras: DSL line or greater quality bandwidth Internet Service.
And let’s get the kid a cell phone with the works: picture, messaging, GPS, etc. Keep the costs down by telling the kid not to use it except with the parent. The kid will enjoy that amusing expectation.
If the parent and child have computers already and you have a tight budget, offer e-mail; if you want to splurge, offer instant messaging.
How to Get it Ordered
Ask for it if your client is the visiting parent and wants greater access to the child living out of state. Offer it if you client is meeting resistance to his/her request to relocate out of state. Be prepared to be specific as to the “stuff” you want ordered, its cost, and who should pay. The relative financial positions of the households will need to be considered as well as the child’s ability to use the technology. The fifteen year old is more able to utilize the technology than the five year old. And be specific about the schedule for communication. Don’t set up an elaborate system without setting up the schedule or else the “power” button won’t be pushed.
What the Order Should Say
For some ex-spouses all the order would have to say is: “Parties shall cooperate in acquiring, setting up, and using Internet communication between non-residential parent and child to the extent of their financial ability.” For other ex-spouses this language would be the beginning of a never-ending barrage of contempt motions.
The following is language used by a Family Court judge in Cleri v. Cleri, Dkt. No.01D-0009-D1, [trial court decision], July 2, 2002: “7. The Husband shall have ‘virtual visitation’ with the children twice per week, on Tuesdays and Thursdays from 6:00 p.m. to 7:00 p.m., and at such additional times as the parties may agree. To facilitate the virtual visitation each party shall forthwith purchase and install a video camera attachment and related software for his or her computer.” In Cleri mother was relocating to Massachusetts and father resided in New York; father sought custody but lost. Father did not see the “virtual visitation” as a remedy to losing weekly contact with his three children.
The following is the language used in Hernandez-Mora v. Jex, No. 01-WY1009-CB (U.S. Dist. Ct., Dist. Colo., July 12, 2001): “Each party may make reasonable telephone, e-mail, or videoconferencing contact with the child while the child is at the home of the other party, during reasonable hours (determined by the location where the child is then located), for so long as such contact is not disruptive to the child’s schedule. To facilitate such contact with the child, each party agrees to keep the other advised of all current home addresses and telephone numbers, including each party’s cellular number(s), e-mail addresses, and other addresses at which electronic contact may be made, and to advise the other within forty-eight (48) hours of whenever a change in the same may occur. Each party agrees that it is in the best interests of the child for the parents to share information concerning the child. The petitioner shall provide an appropriate computer and service plan to be delivered to respondent’s residence prior to the child’s leaving for Spain with petitioner. Thereafter, the petitioner shall be fully and completely responsible for payment of all costs and expenses for necessary and desirable upgrades or replacements to the same, and shall provide ongoing payment to the respondent for monthly DSL or greater quality bandwidth and Internet service for two years. The petitioner shall, at all times, maintain a website for the child, with the same to include all current schedules, activities, pictures, and information regarding the child, and shall, at all times, ensure that the respondent, and respondent’s family have complete access to the same. Respondent’s privacy shall be deemed of paramount concern, and the petitioner hereby agrees that neither he, nor any third person or entity acting by his direction or on his behalf shall, in any way, monitor computer or electronic communication activities or communications of the respondent, either as the same occur with the child, or with any other person or entity.”
Add some language on enforcement or penalties if one parent does not comply with the “virtual visitation” set-up and operation.
What “Virtual Visitation” is Not
Using the computer to communicate with the child may allow you to see and hear the child but it is no substitute for the real thing: face-to-face interaction. As opponents to this new-fangled, proposed substitute for “real” parenting time argue, you can’t hug a computer. For parents who see their children frequently and are involved in the children’s activities, “virtual visitation” may complement “real” parenting time, but it will never replace it. Still, this innovative tool can help divorced families remain connected.
Other Reading/Resources
www.longdistancefamilies.com; Joanna Grossman, “The Virtues of Virtual Parenting”, www.findlaw.com (Dec. 18, 2001); Glen Sacks and Dianna Thompson, “No Virtue is ‘Virtual Visitation’ Rights”, Boston Globe (July 12, 2002); www.glennsacks.com; David Weber, ” ‘Virtual Visitation’ Backed; Judge Adds ‘Link’ to Child Custody Ruling”, The Boston Herald (July 10, 2002); Reni Gertner, “Visitation Via the Internet is Okayed in Child Custody Case”, 2001 LWUSA 609 (August 6, 2001); Pamela Ferdinand, ” ‘Virtual’ Visits May Be Custody Solution”, The Washington Post (July 13, 2002);Kimberly Shefts, “Virtual Visitation: A Next Generation of Options for Parent-Child Communication”, Family Law Quarterly,Vol.36, No. 2 (Summer 2003); Sarah Gottfried, “Virtual Visitation: The New Wave of Communication Between Children and Non-Custodial Parents and Relocation Cases”, 9 Cardozo Women’s Law Journal 567 (2003).
Reprinted by Permission: Elaine M. Stoermer, Exercising Parenting Time in the 21st Century: Virtual Visitation, Dayton Bar Briefs, VOL.LIII, Number4, December, 2003 at 10.”
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