Dec. 21, 2016 – The sight of a moving truck and a “For Sale” sign no longer signals that a child will rarely have contact with a relocating parent anymore. In 2004, Utah became the first state in which a non-placement parent might supplement physical visitation with their child through electronic means.1
This process is called virtual visitation in most states, but is referred to as electronic communication in Wisconsin. Virtual visitation is also known as “virtual parent-time,” “internet visitation,” and “computer visitation.”2
Virtual visitation can be ordered by a court,3 and it also may be agreed to by the parents.4 In certain divorce or paternity cases, one parent will have a job offer in another state, or wish to move closer to their extended family.
Previously, a move would have been more difficult, as it would mean that the children would not be able to have the frequent access to one of their parents. As most decisions in family law should be made with the best interest of the child in mind,5 usually a parent must choose between remaining in an undesirable location or passing on a potentially career-changing job opportunity, and missing out on physical placement and contact with his or her children as often as he or she previously had.
In many states, a parent is barred from moving greater than a set distance from the child’s other parent without express court permission.6 However, with the advent of virtual visitation, courts may be more willing to allow a parent to plead extenuating circumstances, and grant the right to relocate.7 While there are a considerable number of detractors that claim courts now let any parent move long distances,8 this does not appear to be the case. Courts will still take the interests of the child as a primary consideration, and will not award a parent relocation rights haphazardly.9
In 2005, Wisconsin enacted Wis. Stat. section 767.41(4)(e). In so doing, Wisconsin has joined the chorus of states that allow virtual visitation.10 This article will explore the benefits of virtual visitation, Wisconsin’s version of virtual visitation, how virtual visitation can work, and the limits of virtual visitation.
Reasons for Virtual Visitation
There are many different reasons why parents would agree to, or a court would order, virtual visitations. The most common reason is that the non-placement parent lives a great distance away from the other parent.11 By using electronic means, parents can have additional communication with their child without putting the stress of constant travel on the child.
Brandon Carlin is a third-year law student at Marquette University Law School. Reach him by email.
Utilizing virtual visitation, a parent is able to electronically see and speak to his or her child over a webcam.12 While not a replacement for actual physical presence, it is a welcome opportunity for those parents with a great distance to travel to interact and see their child. First introduced in the 1990s, internet cameras (webcams) are utilized in conjunction with an internet connection and audio speakers so that a child will be able to see his or her parent while also having a verbal conversation.13
The simultaneous visualization allows for parents and children to gauge nonverbal reactions, such as smiles, frowns, interest or disinterest, as well as grants parents the ability to view important life events, such as a child showing their gums after the loss of a tooth.14 Speaking to a child over the phone and hearing the child say that they lost their tooth does not grant the same emotional excitement as being able to physically see the child proudly show their parent their newly unrestrained tooth.15
While talking via telephone has been an option for decades, the ability to see a parent and communicate with additional audiovisual methods offers a stronger connection than an email, instant message, or telephone conversation allows.16 Some of the electronic communication programs available even allow a parent and child to play card or board games together while talking.17
Virtual visits with a parent may also be used for functional purposes. Utilizing virtual visitation, the two may see each other, but the conversation might still lull. A method for a parent to keep the conversation stimulated is to play an online game with his or her child to provide the child an opportunity to “warm up” to the parent, while still electronically communicating.
The best interest of the child is taken into account before a court awards virtual visitation, and the proper utilization of the technology offers potentially many benefits for the child. Some of these benefits are a parent helping out with a homework assignment, visually showing a parent an award won at school, or allowing a parent who is a great distance away the opportunity to read the child a bedtime story.
A child will also be able to see a parent more with virtual visitation if the parent has a career that requires extensive travel. In these circumstances, virtual visitation is an essential resource to be able to connect parent to child.18
Furthermore, virtual visitation is not a one-way street. When there is a considerable distance between parents, it is likely that the child will spend longer periods of time in the summer and holidays with the non-placement parent. In that case, the primary placement parent will also have the advantage of utilizing virtual visitation to stay connected with their child during these absences.
Virtual Visitation in Wisconsin
In Wisconsin, virtual visitation is referred to as “electronic communication.”19 Wisconsin has defined virtual visitation as such in Wis. Stat. section 767.41(4)(e):
“If the court grants periods of physical placement to more than one parent, the court may grant to either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent's periods of physical placement with the child. Electronic communication with the child may be used only to supplement a parent's periods of physical placement with the child. Electronic communication may not be used as a replacement or as a substitute for a parent's periods of physical placement with the child. Granting a parent electronic communication with the child during the other parent's periods of physical placement shall be based on whether it is in the child's best interest and whether equipment for providing electronic communication is reasonably available to both parents. If the court grants electronic communication to a parent whose physical placement with the child is supervised, the court shall also require that the parent's electronic communication with the child be supervised.”20
Electronic communication is defined as “time during which a parent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.”21
The law combines telephone conversations, emails, and instant messaging with webcam visitation. When agreeing to electronic communication, it would behoove a parent to specifically define what type of electronic communication is to be utilized, as it is not necessarily virtual visitation with a webcam. If ordered by the court, each parent should also seek clarification and request more details. This could be done in a pre-trial submission or a proposed order.
It is noteworthy that there are certain elements of the Wisconsin statute that must be recognized either in the event of an agreement or a court order: 1) electronic communication is not a substitute, but only a supplement, to placement; 2) the access must be reasonable; 3) and there must be available equipment to make it happen.
It is also important to note that a non-placement parent who has supervised visitation assigned is not given unfettered access in the virtual sense. When a parent is authorized only supervised placement, then a supervised virtual visitation visit is a necessary requirement as well.
The application of this statute has wide-ranging tactical implications. For example, some parents will argue that the other parent’s removal of the children is motivated by an attempt to exclude the left-behind parent. If this is not the case, the moving parent should be more willing to embrace virtual visitation and cooperate in its usage, including paying for and maintaining the necessary equipment. Furthermore, if a left-behind parent did not exercise the court-ordered placement when the parent was in close proximity to the child, then arguably the usage of virtual visitation would truly supplement the placement rather than substitute the placement in the event the child moves with the placement parent.
There are at least two practice notes that accompany virtual visitation discussions. First, if the long-distance parent appears regularly at court, mediation, or conferences via webcam or other means, the quality and convenience of that experience may influence a judge, guardian ad litem, and counsel in determining the application, usage, and limits of virtual visitation in practice with a child. Second, any rules for virtual visitation that apply to one parent will equally apply to the other parent when the child is with the non-placement parent. This is akin to the age-old adage: be careful what you wish for.
Virtual Visitation Across the Nation
Virtual visitation falls in the realm of family law, which is ruled by the individual state.22 Therefore, each state has the authority over the matter of virtual visitation, and state laws may differ.23 However, this also means states can look at any potential issues and may tweak certain aspects of their bill to suit their constituents’ needs.24
In 2004, the state of Utah was the first state to pass amendments that give judges the discretionary authority to include and allow virtual visitation in their divorce decisions.25
With the apparent success of the program in Utah, the skepticism toward virtual visitation appears to be fading. A number of states have followed in passing their own bills, and even more states have begun drafting bills to move toward virtual visitation.26
Potential Negatives with Virtual Visitation
There are potentially negative aspects about the virtual visitation process that must be considered. Unfortunately, some parents are primarily concerned with “winning” a divorce, and try to make things as difficult as possible for the other parent.27 With this antagonistic mindset comes many potentially negative consequences that should be considered before granting virtual visitation schedules.
The initial concern is that judges may use virtual visitation as a catch-all excuse to allow a parent to move a great distance.28 Virtual visitation allows a parent to connect with a child, but it certainly does not compare to spending actual physical time with the child.29 Even with virtual visitation as a relatively new option, courts should continue to look at what is overall best for the child as the primary factor in relocation cases.30
When a parent allows a child to use a webcam in their home for virtual visitation, they in effect permit the other parent to digitally enter their residence as well. A web camera will not only pick up the image of the person using the system, but also background images as well.31 This can lead to requests for “virtual tours” around the house if the camera is attached to a laptop screen, or it can lead to informal questions about the décor around the house.32 In addition, a web camera not only picks up visual images, but audio as well. Questions such as “who is at the house talking in the background?” can be akin to invasion of privacy. Subjectively, the best method for implementing virtual visitation is to use a computer lab outside the home, or to provide a neutral backdrop behind the user so that the conversation is about the child and not about the residence of the non-participating parent.
As much as questions about the background image and sounds in a conversation can be an invasion of privacy, questions about invasion of privacy from the hosting parent might arise.33 It is possible that the hosting parent listens in on the conversation, or records the conversation.34 During conversation, a child may be excited during a virtual visitation and speak loudly. The other parent could possibly be in an adjacent room and hear every word both parties say. This could potentially be used for unconscionable purposes later.35
Certainly, the most evident negative aspect of virtual visitation is that it takes time away from the parent with whom the child is currently with. When the electronic communications are not pre-scheduled, even a 10-minute conversation equals 10 fewer minutes with the current physically present parent. If this grows into a continuation,36 it can breed animosity amongst the parents that results in further stress for the child.
The other negative impact of relying on virtual visitation as a supplement is the ability to sabotage the virtual visitation time with the non-placement parent in subtle ways that are hard to identify and bring to the court under the contempt process.
Implementing Virtual Visitation
In many circumstances, parents allow their children to virtually communicate with the other parent on their own, and require no court order. If the placement parent has no qualms, the child will use a webcam to talk with their non-placement parent, and nothing else needs to be done. This can, and does, happen in all 50 states.37
It also happens across the globe with military families, who utilize virtual visitation methods to stay connected while deployed overseas.38 However, to set definitive times, parties may need to schedule and lock-in times so that the child and the non-placement parent can have a set schedule.39
There are a variety of virtual visitation programs available for parents to use. Some of these programs are free to download and use, and others require a monthly fee. Some common programs used are Google Hangouts, Skype, and Apple FaceTime.
Although virtual visitation is a relatively new form of contact between a parent and child, the length of time issues with virtual visitation are analogous to the length of time issues with telephone calls. In telephone communications, there generally is a length of time obscurely defined in Wisconsin as “a reasonable amount” of contact “at reasonable hours during the other parent’s periods of physical placement with the child.”40
While not exact in the length of time “reasonable” is to mean, it is generally thought, as most things in family law, in the common term of “best interests of the child.” As such, a starting point for deciding the length of the virtual visitation could be as long as the child determines the conversation should last.
Conclusion
Virtual visitation is a relatively new, adaptive method of communication. Accessing the power of the internet and employing web camera capabilities, parents can audio-visually communicate with their child over a great distance.
This is an exciting technology that can bring people together and make the world feel much smaller and more manageable. Proper utilization of virtual visitation brings a child closer to the non-placement parent.
While there are certainly potential downsides to virtual visitation, this technology appears to have the potential for making a positive improvement in a child’s life. Although this technology may seem invasive, confusing, and difficult to manage at the present, other forms of technology all did the same when they were new as well.
Telephone conversations, email, and text messaging were once thought of as foreign and potentially invasive, but are now commonplace in today’s society, and some are now even arguably outdated.
By being cognizant of the negative aspects of virtual visitation while primarily focused on the positive attributes, both parents can utilize virtual visitation to improve their relationships with their children, and long distance relocations may be less disruptive and upsetting to their child.
An original version of this article was published in the Wisconsin Journal of Family Law’s October issue, published by the State Bar of Wisconsin’s Family Law Section. Visit the section’s webpage to learn more about the section and to join.
Endnotes
1 Utah Code Ann. §30-3-32 (LexisNexis 2004).
2 The Virtual Visitation Handbook, A Guide to Personal Video Conferencing, Michael Gough, 2nd Edition, copyright 2004-2006. (Gough was instrumental in bringing virtual visitation into the Utah court system. He worked in computer security, and during his divorce, his wife wanted to move from Utah to Wisconsin. He requested an order for virtual visitation, and demonstrated in the courtroom how it can easily be implemented. With the help of his attorney, Gough helped create the first Bill for virtual visitation in Utah, which was aptly named “Saige’s Law,” after his daughter, Saige. The Bill was passed into law in 2004.) Id.
3 Gilbert v. Gilbert, 2007 ND 66, 730 N.W.2d 833.
4 Wis. Stat. § 767.405(12).
5 Porter v. Porter, 2006 ND 123, ¶6, 714 N.W.2d 865.
6 Infra note 29.
7 Infra note 16.
8 Infra note 16.
9 Infra note 29.
10 http://family.findlaw.com/child-custody/virtual-visitation.html (Last accessed July 13, 2016).
11 Law and Children; Virtual Visitation: Computer Technology Meets Child Custody Law; News, N.Y. L. J., Sept. 18, 2002.
12 Supra note 2.
13 http://www.cl.cam.ac.uk/coffee/qsf/coffee.html (Last accessed July 13, 2016).
14 Supra note 10.
15 Id.
16 Telepresence Technology in Divorce and Separation, Richard Wolman, Ph.D., & Richard Pomerance, Ph.D, OAJFP, Vol. 4, 2012.
17 Supra note 2.
18 Divorced dad leads drive for 'virtual visitation', Lawyers Weekly USA, Dec. 5, 2005.
19 Wis. Stat. § 767.41(4)(e).
20 Id.
21 Id.
22 Uniform Child Custody Jurisdiction and Enforcement Act (1997). Wis. Stat. Ch. 822.
23 Id.
24 http://www.in.gov/judiciary/rules/parenting/index.html (Last accessed July 13, 2016). Florida, Illinois, North Carolina, Texas, and Wisconsin all group these virtual visits with telephone conversations, instant messaging, and text messages under the umbrella term of virtual visitation. These states specifically give power to the judiciary to determine the best interests of the child as to any amount of virtual visitation awarded. Indiana, while also grouping under the term electronic communication, also specifically lays out that these virtual visits shall not interfere with the authority of either parent in relation to reasonable restrictions on the child’s access to the internet.
25 Supra note 1.
26 Coming to a State Near You: Development of Virtual Visitation Legislation; Family Law, The Legal Intelligencer (Online) July 12, 2011.
27 http://www.dailyfinance.com/2011/06/09/getting-divorced-or-separated-7-financial-mistakes-not-to-make/ (Last accessed July 13, 2016).
28 Supra note 16 at 53.
29 Supra note 3. The North Dakota Supreme Court overruled a lower court’s determination that a long distance move by the custodial parent would be detrimental to the child. While agreeing that virtual visitation is not a substitute for personal contact, the court held that the move would be in the best interest of the child. Virtual visitation could be used as a supplementary tool, and coupled with longer, though less frequent, visitations with the father. Overall, the child would be best served moving with the mother.
30 Supra note 5.
31 See supra note 10.
32 Supra note 16, at 56.
33 If a parent is to audibly attend every virtual visitation session a child has with the other parent, they are privy to things the other parent might not want them to know.
34 Anonymous v. Anonymous, 558 F.2d 677, 1977 U.S. App. LEXIS 12376 (2d Cir. N.Y. 1977).
35 An example would be listening as the other parent mentions a future date they could meet the child. The interloping parent could conceivably make plans with the child’s friends for that same date, pretending they were unaware of a conflict. This would cause the child to have to pick between a party with their friends, or going to the zoo (or a ballgame, or a movie, etc.) with the other parent.
36 See supra note 11.
37 Supra note 2.
38 Id.
39 Id.
40 Wis. Stat. § 767.41(4)(e).
