Virtual visitation is another term for internet or computer visitation.  Parents and their children are able to have face-to-face time with each other using electronic equipment.  A parent could use many different methods of electronic communication for virtual visitation, including video conference, web-cams, or cell phones.  Applications like Facetime, Skype, etc., can add additional visitation time between a parent and their child.

Other forms of virtual communication might include email, private chat rooms, instant messaging, or even playing video games together and talking with headphones.  However, these methods, while great for additional time, do not give the parent and child the important face-to-face time that they need.

While divorce or separation is the main reason people use virtual visitation, that is not its only practical use.  Any time a parent has to be away from their child, technology can be used to keep in contact.  Time away could be the result of travel, work schedule, military service, or even in a situation where the parent is in jail or prison.  Virtual contact is not just for parents, grandparents and extended family can also use technology to keep in touch.

Virtual visitation should never replace face-to-face, personal contact between a child and their parent.  The use of virtual visitation should not be used as a reason why the custodial parent should be able to relocate.  The court could consider virtual visitation when looking at whether the parent/child relationship would be negatively impacted by a move.

Legislation

Virtual visitation was added to the North Carolina child custody statute in 2009.  The statue says:

“An order for custody of a minor child may provide for visitation rights by electronic communication. In granting visitation by electronic communication, the court shall consider the following:

  • Whether electronic communication is in the best interest of the minor child.
  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
  • Any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.

The court may set guidelines for electronic communication, including:

  • The hours in which the communication may be made,
  • The allocation of costs between the parents in implementing electronic communication with the child,
  • The furnishing of access information between parents necessary to facilitate electronic communication.

Electronic communication with a minor child may be used to supplement visitation with the child. Electronic communication may not be used as a replacement or substitution for custody or visitation. The amount of time electronic communication is used shall not be a factor in calculating child support or be used to justify or support relocation by the custodial parent out of the immediate area or the State. Electronic communication between the minor child and the parent may be subject to supervision as ordered by the court.”

The definition of electronic communication in the North Carolina statute is “contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.”

Virtual Visitation Case

In 2001, the first significant case regarding virtual visitation took place, McCoy v McCoy.  The mother asked the court to allow her to move with her child in order to secure permanent employment that included health benefits.  Prior, she was a freelance website designer with non-steady income.  The mother developed an alternative visitation schedule that allowed the father to have the same total amount of time with their child but the days would be clustered around their child’s school breaks.  In her proposal, she also included setting up a streaming video on the web so that her son and his father could still see each other on a daily basis.  The father was opposed to his son moving across the country and argued that the move was not in the child’s best interest and that the move would seriously damage the relationship he has with his son.

The court did not agree with the father’s argument and gave permission for the mother to relocate with the child.  The court did agree that when a child moves long distances with one parent, the ability for the other parent to visit is negatively impacted.  But, the court also said that this alone might not be enough to say that the move is contrary to the child’s best interest if a new visitation schedule can be developed that preserves the child’s relationship with the non-custodial parent.

The court praised the mother’s innovation in her suggestion of technology to enhance her child’s visitation schedule with his father.  The father and son would still have the same amount of visitation time in person and the technology would be additional visitation.

How to Draft an Agreement

When creating your internet visitation agreement, you can make it as detailed or general as you need to address your circumstances.  At a minimum, your agreement needs to state the information shared between the child and non-custodial parent remains private, that neither parent will use the child to pass information about divorce issues, and consequences for non-compliance to the agreement where the remedies are specifically spelled out.  For example, if the custodial parent does not make the electronic communication available for more than two weeks in a row, the custodial parent will send the child to the non-custodial home for an additional weekend, at the expense of the custodial parent.

Your agreement should also spell out who is required to pay for what equipment: computer, access to internet, web camera, email, and other required software.  You should also specify the minimum quality of the internet to be used by both parties.

Some examples of specific language used in other agreements are:

  • “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.” Hernandez-Mora v. Jex (2001)
  • “Each parent shall allow the other parent reasonable contact with the child by use of the Internet. Reasonable contact shall include sending and receiving e-mails, sending and receiving “instant messages,” and sending and receiving photographs.” (2001 Supplement to Jeff Atkinson, Modern Child Custody Practice (2d ed. 2000), § 5.34A)
  • “By not later than December 1, 2000, former wife shall purchase or lease a separate, state of the art computer system together with appropriate computer furniture for Child’s sole and exclusive use in her bedroom, which will feature video-conferencing equipment and software, including a video camera with audio capabilities, for Child to privately contact her father via internet and e-mail systems”  (2001 Supplement to Jeff Atkinson, Modern Child Custody Practice (2d ed. 2000), § 5.34A)
  • “By not later than December 1, 2000, former husband shall purchase or lease a separate, state of the art computer system together with appropriate computer furniture for Child’s sole and exclusive use in her bedroom in Florida, which will feature videoconferencing equipment and software, including a video camera with audio capabilities, for Child to privately contact her mother via internet and email systems. Father shall also obtain and pay for internet access service for the child which can be utilized by the child at either residence”  (2001 Supplement to Jeff Atkinson, Modern Child Custody Practice (2d ed. 2000), § 5.34A)

Virtual Visitation: Positives and Negatives

People have mixed thoughts on virtual visitation.  A major concern is that the virtual visitation will not supplement visitation but will end up being used to limit the face-to-face contact between the child and parent.

Those in favor of virtual visitation focus on the fact that some states now specify that virtual visitation is supplemental to personal contact, not in place of personal contact.  They also believe that more legislation is needed across the United States to make both the courts and more people aware of technology that can help in these situations.

No matter what one’s stance is in regard to virtual visitation, it is important that everyone who could be involved in a family law case understands the possible uses for virtual visitation and possible pitfalls.