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Can The Internet Replace Visitation When A Custodial Parent Relocates?

Tuesday, Dec. 18, 2001

An appellate court in New Jersey recently chastised a lower court for failing to give adequate consideration to an "alternative visitation schedule" by which a non-custodial father could have day-to-day contact with his daughter. The schedule -- which was proposed by the child's mother, who was seeking permission to relocate from New Jersey to California -- provided for "visits" accomplished not in person, but by web-site and camera-computer technology.

The Traditional Approach to Requests for Relocation

Traditionally, courts were downright hostile to requests by custodial parents--mostly women--to relocate away from a noncustodial parent with visitation rights. In part, that is because American courts take visitation seriously. They presume that children benefit from maintaining a regular, ongoing relationship with both parents, notwithstanding their parents' divorce, and visitation facilitates that goal.

Noncustodial parents are thus presumptively entitled to visitation with their children absent a showing of harm to the child as a result of the visits. Typical visitation arrangements, whether by private agreement or court mandate, tend to combine some regular weekly or bi-weekly visitation with some extended visits during summers or holiday breaks.

The challenge of relocation is that the regular visits are often made difficult or impossible because of time or expense. That means that the noncustodial parent's visitation is instead collapsed into one or two extended visits. And those visits may require the parent to fly a great distance to pick up the children and to return them.

Courts traditionally required the custodial parent to prove not only that the move would not harm her children, but also that it would provide the children with some distinct advantage--better economic security, closer relationships with extended family, or better opportunities for education or other activities. In addition, many required that the relocation not impair "meaningful access" to the other parent. Taken together, these two requirements made it difficult for a custodial parent to prevail on a petition for permission to relocate.

Critics of this traditional approach have pointed out that these rules make it difficult for women, who comprise most of the sole custodians, to pursue meaningful careers or educational opportunities--a fact that compounds the economic disadvantages of divorce.

They have also pointed out that this strict approach interferes with a traditionally recognized zone of family privacy within which parents make decisions about their children's lives. Finally, being tough on relocation also makes it easy for a noncustodial parent to hold the custodial parent hostage in the marital hometown for no better reason than spite.

The Modern Approach to Relocation

Over the past decade, many states have retreated, in different ways, from this traditional approach. (A few states, however, retain the traditional, strict approach.)

Under any of these approaches, it is easier for a custodial parent to succeed in an attempt to relocate. But courts still focus on what's good for the children, and the issue of compromised visitation still troubles them. That is where the Internet may play a role.

The Role of the Internet in Child Custody Decisions

A search of recent custody cases shows that the Internet has already made a mark on child custody cases.

For instance, it has been blamed for the break-up of marriages (leading to custody fights) when one spouse engages in "cyber-affairs." It has been the basis for a finding of contempt, when a mother's use of the Internet tied up the phone line during the hours designated for the noncustodial parent to call and talk to his children.

Moreover, a mother accused of having an "Internet addiction" was required, as a condition of temporary custody, not to use the Internet for any purpose. And access to the Internet has been a factor used by courts in choosing the best home for the child at stake in a custody fight.

The Role of the Internet In Visitation

The role of Internet in visitation, however, is somewhat different. The argument is that with modern technology, the traditional belief that custodial parental relocation means an almost automatic severing of ties between children and their noncustodial parent may no longer hold true. Instead, noncustodial parents can retain some of the benefits of physical closeness even when their children move to a remote location.

In the New Jersey case mentioned above, the mother's proposed plan contemplated a set-up that would facilitate face-to-face communication between the child and her father, as well as allow the father to review and correct her homework. Other family and friends, also left behind by the relocation, would also have the opportunity for electronic, visual contact with the child.

Nevertheless, the trial court rejected the petition for relocation. Among other findings, he found that the suggested visitation--including daily Internet communication--would be an insufficient substitute for in-person weekly contact and communication.

A recent New York case, Kime v. Kime, however, took a view very similar to that of the New Jersey trial court, believing they can be no substitute for in-person visitation. There the court, applying a multi-factor test designed to measure the best interests of the child, rejected the idea that communication by letter, fax, or e-mail could replace actual visitation.

What Does the Future Hold?

To be sure, lots and lots of noncustodial parents in fact rely on the Internet to communicate with their children, just as generations of divorced parents have relied on letters or even faxes to keep in touch. This form of communication is certainly desirable as a supplement to in-person visitation.

But the question is whether Internet communication, with all the modern innovations it entails, should be given some kind of legal recognition as a facilitator of "super-communication"--communication that is intense, regular, or meaningful enough to be given special weight in relocation cases, because in some sense, it almost constitutes, or at least approaches, actual in-person visitation.

There are very few cases on the subject, and the two recent ones take opposite approaches. Technology is bound to play a role in this area of law, but the extent of its impact remains to be seen.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. She has previously written for this site on other family law issues; her columns on these and other topics can be found in the archive of her columns on this site.

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