Virtual Visitation Revisited

While no family court judge or family lawyer will ever suggest that face technologies could supplant actual physical contact with a child, the rapid technological advances of virtual visitation make these electronic communications as necessary to families as telephone and mail contact were a generation ago. It is difficult for family court judges to deny these requests. After all, if a petitioning party is successful in relocating, the non-relocating parent might go from visiting or speaking with a child every day to a schedule in which physical visitation is just once or twice a month. But family courts need to understand these technologies before directing their everyday use, and such understanding is not always a given. In addition, other considerations may have to be factored into decisions about the advisability and extent of electronic communication between distant parents and children.

Some Challenges

Today, only a handful of states, including Utah, Wisconsin, Texas, Florida, North Carolina and Illinois, have statutes allowing for electronic communication between children and their noncustodial parents. Therefore, most judges must make the decisions concerning parent/child electronic communications without legislative guidance.

Some family court judges see all this new technology as requiring too much interaction between the divorced or separated parents. They also sometimes feel that multiple electronic contacts will be disruptive to a child's routine or homework schedule. This puts the burden on family lawyers to know what their clients want in terms of virtual visitation, and to advocate for electronic access in the best interest of the child. Sometimes this means educating the judge (or even one's own client), who may not be as familiar with the technology alternatives available today.

Before ordering face technology communication, family court judges still need to determine whether their use is in a child's best interest ' a fact increasingly regarded as a given. But in cases where the technology is used not for a short greeting, but to harass or snoop on the other parent, disputes over virtual visitation can turn a garden-variety custody case into a high-conflict one. For example, many smart phones today are used as tracking devices, with parents wanting to know where a child is at every minute of the day. Or if parents want to use the technology to see their ex's home set-up ' whether that home is child-proofed, or whether a room is sufficiently clean, for example ' that is where technology is used not in a facilitating sense, but instead is used to invade an ex-spouse's right to privacy.

Fortunately, in the large majority of cases, parents figure these questions out on their own. They don't want to spend money on family law lawyers to negotiate whether a FaceTime call takes place only on weekends, or at other specific times. Litigants are also hesitant to ask family law judges to decide these issues because not all judges are familiar with the technologies used today. But when judicial intervention is necessary, lawyers need to know how to help the court craft a solution that will work best for their clients.

Family court judges should inquire as to how the face technology was used prior to the separation. Was it used every day? Multiple times a day? For how long? If the technology was never used, a family court judge should inquire as to a parent's comfort level in using it. If the court determines that real-time electronic communication should be ordered, more questions will follow: What sorts of limits on such communication are important in the case? Should these communications occur multiple times a day? Should they take place without the other parent knowing? Should a parent be able to use face technology to communicate with a child while the child is in school? In pre-school? But when the video-conferencing becomes obsessive, with a parent using it so frequently that it interferes with the child's continuity of care ' or learning, extracurricular, or sleep schedules ' then family court judges and family lawyers have to propose guidelines; sometimes, if the situation calls for it, specific scheduling times should be imposed.

The fact is that not everyone is comfortable using advanced technologies to communicate with their child. Actually hugging a child is never the same as its virtual counterpart. But, if used properly, the technology can be a true gift, with a parent getting to hear what a child did in school, or getting to watch a school play “live” when actual attendance is not possible.

Illustrating the Issues

Two recent cases show how some contemporary domestic relations litigants and their attorneys are dealing with the need to obtain court-ordered electronic visitation.

In LaGraize v. Filson, 171 So.3d 1047 (La. Ct. App., 2015), a mother successfully petitioned to relocate from New Orleans to Italy for a three-year fellowship program to study Renaissance philosophy and intellectual history. The father, an Alabama resident, opposed the relocation, arguing that Skype was not a viable substitute for direct contact with his 14-month old daughter: “Hands on interaction either through feeling of security or trust or through providing [the child] with meals, bedtime ' it is more than just hearing a voice or seeing a face.” Although the lower court's decision to allow the mother and the child to relocate to Europe for a finite period was affirmed on appeal, the lower court's initial order to allow simply for “regular telephone/FaceTime or Skype contact” was reversed by the appellate court, which directed that these communications take place daily.

In K.T. and M.R.T. v. L.S. f/k/a L.R., 118 A.3d 1136 (Pa. Super., 2015), paternal grandparents petitioned for visitation of their grandchildren (ages four and six) following their son's death. The parties lived more than 200 miles away from one another. An interim order was entered, giving the grandparents three weeks of visitation during the summer, as well as a few weekends during the academic year, plus some limited holiday time. The interim order also required a Skype communication every Sunday at 7 p.m. After the trial, the lower court dismissed the grandparents' action, granting no visitation whatsoever, not even virtual visitation.

The trial court's decision in the case is emblematic of what happens when family court judges are unfamiliar with face technology. The main problem was the mother's refusal to fix the camera on her computer, which prevented virtual visitation from happening at all. Even when the paternal grandparents offered to fix the problem, at no cost to the mother, the problem persisted.

The judge made comments during the proceedings that are shared by other fact-finders, specifically:

1) This micromanaging contacts over the phone and Skype and all that stuff, you just can't be all things to all people. And from the evidence, I do accept [M]other's testimony that these Skype calls are upsetting. They are an interruption of their routine. And I can appreciate that.

2) How do you have a conversation with a 4-year-old? Hi. How are you? Tell me what you did today. What do you think of the Middle East situation? Four-year-olds don't have conversations with people in most instances. They report. I played. I like the puzzle. I like my bat. I like the ball. I watched the Muppets. They are not on [TV] anymore or whatever, whoever.

3) But 6-year-olds are starting to have conversations. They are going to school. They are in kindergarten, first grade. This Skype technology, I heard the evidence. And I heard, oh yeah, we'll get you the right device and this will all work. Mom refused that. But then she doesn't apparently know how to use her phone to make it work. But then I heard testimony that it doesn't work for group calls with phones.

4) And I will tell you what my concern was when I heard all of that testimony and there was I believe you said you could get up to 10 people on a call if you're on a computer. Ma'am, in my judgment, that is overload. You get 10 people yammering at a 4-year-old, all visual, all seeing, all that. To me, I can't comprehend how that would impact a 4-year-old.

Clearly, this particular lower-court judge was not an advocate of face technologies, at least for the grandchildren in this specific case. The Pennsylvania appellate court reversed, however, not only reinstating the prior interim order, but directing the mother “to fix the Skype feature on her cell phone or home computer to allow visual capabilities within thirty (30) days of the disposition. Alternatively, the parties could consider using FaceTime to communicate.” The appellate court's decision emphasized the need to keep the grandparents in weekly contact with their late son's children. The fact that the mother refused to fix the camera on her computer apparently spoke volumes regarding her desire to maintain meaningful contact between the children and their paternal grandparents.

Conclusion

Like all custody cases, the ones we've discussed fall on their own unique sets of facts, but family lawyers have an affirmative obligation to know whether the fact-finder is familiar with virtual visitation and whether he or she favors it generally, and under what circumstances. Like other technological issues that confront domestic relations law practitioners, educating family court judges on the cost, use, and importance of the technology is crucial. This may require in-courtroom demonstrations, and the provision of sample language that needs to be included in proposed orders. But, most of all, it is vital that the lawyer tie the request for the use of technology to facilitate contact to the best interest of the child.

Mark A. Momjian is co-founder of Momjian Anderer, LLC, based in Philadelphia. He is a long-time Editorial Board member of this newsletter, and he can be reached at [email protected].

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