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Anita Ramasastry

Parenting in Cyberspace? Virtual Visitation and the Court-Ordered Use of Technology Become Realities In Tough Economic Times


Tuesday, November 2, 2010

In light of the economic recession in the U.S., more of America's parents may need to relocate in order to find jobs and put food on the table. If a couple once raised children together, but are now divorced, one parent's relocation for economic reasons may create serious hardship for the child -- who may have to move to a new place and be geographically separated from a parent.

In recent years, in response to such situations, U.S. family courts have begun to devise virtual visitation rights -- which allow for parents to interact with their children through the use of technology . " Virtual visitation," which uses Internet technology, has also been referred to as "e-visitation". It encompasses the use of video-enabled phone applications such as Skype, but may also include the use of other web applications such as text messaging and e-mail.

In this column, I will discuss a precedent-setting New York case on virtual visitation, and examine other states' virtual visitation laws. Given the necessity, especially in the recession, for parents to seek work wherever they may find it, virtual visitation may be a pragmatic and useful -- though, of course, never ideal -- solution.

Parenting Via Webcam? The New York Case of Baker v. Baker

In Baker v. Baker, a New York judge recently ruled that -- as a condition of her planned move -- a Long Island mother must allow her two children to communicate virtually with their father through Skype, an Internet calling service which has video features. The couple has been divorced since 2008. The mother planned to move to Florida to live with her parents and find work -- bringing the children with her.

The Baker case was the first time a New York judge had imposed virtual visitation. More specifically, Suffolk County Supreme Court Justice Jerry Garguilo ordered that the mother, "will see to it, prior to re-location, that the [father], as well as the children, are provided the appropriate internet access via a Skype device which allows a real time broadcast of communications between the [father] and his children."

In granting the mother's request for approval of her move (despite the father's objection), Justice Garguilo took notice of the family's dire financial circumstnaces: " The former marital home, where the Petitioner resides with the children, is in the latter stages of foreclosure. There is no equity in the house. The Petitioner had been employed, long-term, as a bookkeeper. Since December of 2009, she remains unemployed as her employer downsized and was forced to terminate her services. Her unemployment benefits are soon to expire. Her search for suitable employment, to date, has failed."

As a result, the Justice noted that "[e]conomic hardships are a reality. The availability of a supportive family unit in Florida, as well as apparent opportunities to secure employment and reduced child care costs, are real considerations," and granted the mother's petition to relocate.

The Justice also granted the father more than rights to Skype with his children. He was allowed to have visits with his children during school vacations as well. Technology, therefore, was an aide to supplement -- but not replace -- real contact with a parent.

Other States Also Allow Virtual Visitation -- and It May Be A Growing Trend

Prior to the New York decision, other courts appear to have made similar rulings. For instance, Michael Gough, the divorced father of a then-four-year-old, asked a Utah judge to require his ex-wife to allow him to use Skype to maintain contact with his child. This order led Utah to become the first state to adopt virtual visitation laws, in 2004.

In news reports, Gough has states that when he had spoken to his daughter over the telephone, their conversations had lasted an average of five minutes. In contrast, he says, when he started using video calls via the Internet to connect with his daughter, conversations lasted for an average of fifteen minutes and occasionally went on longer. Accordingly, Gough has become a strong advocate for virtual visitation. The founder of a Website on the topic, he has advocated for related legislation in several other states.

In addition to Utah, virtual visitation is currently available in five other states: Florida, Illinois, North Carolina, Texas, and Wisconsin.  Meanwhile, many other state legislatures have bills before them proposing the allowance of virtual visitation. It thus seems likely that permitting virtual visitation will become a growing trend.

State laws regarding virtual visitation vary in their details.  However, in most states that allow it, the availability of virtual visitation is usually not a major factor when a judge makes child custody and in-person visitation rulings.  When virtual visitation is granted, a judge will typically create a schedule outlining on what days and at what times the virtual visitation can occur, and for how long the sessions may last.

In considering whether to require virtual visitation, family-court judges look, as always, to the best interests of the child. Judges consider whether this kind of visitation will seriously interfere with the child's well-being and upbringing. The fact that the communication would be virtual will very likely be no help at all to parents who have lost visitation due to physical or sexual abuse of the spouse or child, or due to the commission of other serious crimes.

Conversely, too, judges consider whether virtual visitation could improve the child's situation. Virtual visitation can be used to encourage increased contact between a non-custodial parent and the child, particularly if they are living quite far away from one another.

Overall, online parent-child meetings, which deploy video calling and Webcams, are better than the old-fashioned telephone in most cases. However, family law experts have raised a real concern that technology will make it more likely that courts will allow custodial parents to move further away from non-custodial parents, and with greater frequency. Replacing face-to-face interaction with online interactions is not the same for parent or child. Thus, courts should be wary of allowing a relocation that would otherwise be questionable because Skype is available. Meanwhile, parents should remember that parenting via Webcam is no substitute for in-person contact; the Internet simply provides some extra tools, to be used carefully.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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