November 2001

Technology Hits Home: Internet Visitation

Laura W. Morgan

In the last year, the phenomenon of “internet visitation” has become more than just an isolated anomaly. Judges are now using internet visitation in routine divorce cases rather than only in relocation cases. Family law practitioners should therefore be familiar with the case law and with how to draft an internet visitation provision for a separation agreement.

I. Cases

In McCoy v. McCoy, 336 N.J. Super. 172, 764 A.2d 449 (App. Div. 2001), the mother petitioned the court to allow her to relocate. She worked as a freelance website designer, and she wanted to move to California to accept a permanent job with health benefits. She proposed a visitation schedule that would give the father the same number of total days with the child, but would group those days around the child’s school vacation schedule. She also proposed setting up a website with streaming video that would allow the father and the child to see each other in real time over the internet. The father opposed the move, and argued that the move would damage his parent-child relationship his child and that the move was not in the child’s best interests.

The appellate court disagreed, and allowed the mother to relocate. The court first noted that whenever a custodial parent moves to a distant location, the ability of the noncustodial parent to exercise visitation is adversely affected. However, that fact alone may not be contrary to the best interest of the child, so long as an alternate visitation schedule can be created that continues and preserves the relationship between the child and the noncustodial parent. The court continued that it found the suggested use of the internet innovative and to be admired. “We believe that the mother's suggested use of the Internet to enhance visitation was both creative and innovative. In dismissing that suggested use, the trial court never focused on the actual alternative visitation schedule proposed by the mother and whether it was comparable to the father's current schedule or inimical to the best interest of the child.”

What was key to the court’s decision in McCoy was that the noncustodial father would have the same or a greater number of total days with the child, and that the internet was used to supplement that visitation. The same principles were alluded to in In re Marriage of Thielges, 623 N.W.2d 232 (Iowa Ct. App. 2000), where the mother sought to relocate. The court there said,

In reaching this conclusion, we have not ignored chapter 598’s supposition it is generally in children’s best interests to have the opportunity for maximum continuous physical and emotional contact with both of their parents. See Iowa Code §§ 598.1(1), 598.41(1). Such contact can be assured by means other than a traditional, alternating-weekends visitation schedule. For example, section 598.21(8A) states that when a court determines a long-distance relocation constitutes a substantial change in circumstances, the court can modify the custody order at issue by granting the nonrelocating parent “extended visitation during summer vacations and school breaks and scheduled telephone contact.” The district court fashioned such a solution in this case: The court modified Brian’s visitation schedule by granting him eight weeks of visitation during the summer, visitation during half of the winter school break, visitation during alternating Thanksgiving and spring breaks, reasonable visitation whenever he visits North Dakota or whenever Elnora visits Iowa, and liberal telephone and Internet communications. These changes are appropriate and fair given Brian, who also has many relatives in the Ellendale area, travels to North Dakota approximately eight to twelve times every year. We find the parties’ children have been assured the opportunity for maximum continuous physical and emotional contact with both of their parents and affirm the district court.

(Emphasis added.) See also In re S.M., 938 S.W.2d 910 (Mo. Ct. App. 1997) (trial court order directed guardians to permit contact with the natural family by allowing reasonable contact through letters, telephone calls, internet messages, if reasonably available, videotaped communication, and, if possible without undue expense and by agreement of the guardians, in-person visitation).

In Hernandez-Mora v. Jex, No. 01-WY1009-CB (U.S. Dist. Ct., Dist. Colo., July 12, 2001), a case in federal court under the Hague Convention, the parents settled the case by having the child and father live in Spain, while the mother remains in the US. The agreement spells out how both e-mail and video-conferencing will be used, the type of equipment to be used, who pays for the equipment and internet access, and how the parties’ privacy will be protected. In particular, the agreement provides that the parties will have joint custody, including shared decision making on all issues, and that the father will provide an appropriate computer and service plan for the mother before the child and father remove themselves to Spain, pay for necessary service upgrades, pay for a DSL line or greater quality bandwidth service for the mother for two years, create and maintain a website for the child with the child’s schedules, activities, pictures and information, and ensure that the mother’s privacy is protected.

Most recently, in Burke v. Burke, 2001 WL 921770 (Tenn. Ct. App. August 7, 2001), the court approved a child custody arrangement involving internet visitation with webcams and e-mail where the parents lived only 70 miles apart. The Tennessee Court of Appeals approved the parenting plan in the divorce case whereby the father would pay for the mother's computer equipment and training, and the father would contact the children via the internet three times per week. The children would contact the father whenever they wished. In particular, the court stated:

We agree with the trial court that Mr. Burke's proposal of internet-based communications is a “unique, forward thinking and viable communication alternative.” Furthermore, this ”unique” alternative will give both parents the opportunity not only to speak to the children, but see them as well.

II. Drafting an Agreement

Internet visitation agreements can be general or very detailed, depending on the issues addressed. At the least, the agreement should state that the custodial parent will ensure that any information transmitted between the noncustodial parent and the child remains private between the noncustodial parent and child. Parties should also agree that they will not use the child to communicate any issues related to the divorce of the parties themselves.

The agreement should also punish noncompliance. Either remedies, sanctions or the contempt power of the court should be spelled out. One example:

If the agreed-upon electronic communications are not in place for a certain period of time, then the caretaker parent of the child will send the child for an extra weekend at his or her expense to visit with the parent remaining behind.

The agreement should specify who pays for the necessary technology, including computer, computer access to the internet, web camera, e-mail, and necessary software. In addition, the agreement should specify the required level of quality of the internet access. A DSL line or greater quality bandwidth should be required.

The following is the language used in Hernandez-Mora v. Jex, No. 01-WY1009-CB (U.S. Dist. Ct., Dist. Colo., July 12, 2001):

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 (determined by the location where the child is then located), for so long as such contact is not disruptive to the child’s schedule. To facilitate such contact with the child, each party agrees to keep the other advised of all current home addresses and telephone numbers, including each party's cellular number(s), e-mail addresses, and other addresses at which electronic contact may be made, and to advise the other within forty-eight (48) hours of whenever a change in the same may occur. Each party agrees that it is in the best interests of the child for the parents to share information concerning the child. The petitioner shall provide an appropriate computer and service plan to be delivered to respondent’s residence prior to the child’s leaving for Spain with petitioner. Thereafter, the petitioner shall be fully and completely responsible for payment of all costs and expenses for necessary and desirable upgrades or replacements to the same, and shall provide ongoing payment to the respondent for monthly DSL or greater quality bandwidth and Internet service for two years. The petitioner shall, at all times, maintain a website for the child, with the same to include all current schedules, activities, pictures, and information regarding the child, and shall, at all times, ensure that the respondent, and respondent’s family have complete access to the same. Respondent’s privacy shall be deemed of paramount concern, and the petitioner hereby agrees that neither he, nor any third person or entity acting by his direction or on his behalf shall, in any way, monitor computer or electronic communication activities or communications of the respondent, either as the same occur with the child, or with any other person or entity.

In the 2001 Supplement to Jeff Atkinson, Modern Child Custody Practice (2d ed. 2000), § 5.34A provides the following form for internet visitation:

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.

Norman Levin, current Chair of the Florida Family Law Section, used the following provisions in a recent case:

(A) 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.

(B) 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 video-conferencing equipment and software, including a video camera with audio capabilities, for Child to privately contact her mother via internet and e-mail systems. Father shall also obtain and pay for internet access service for the child which can be utilized by the child at either residence.

Cases

Silverman v. Silverman, No. 00-4004 (8^th Circuit Court of Appeals, October 4, 2001): The father appealed dismissal of his Hague petition, which he brought after the mother left Israel with the parties’ children and filed for legal separation in the United States. The court held that Younger abstention principles do not permit a dismissal of a Hague petition under The Hague Convention on the Civil Aspects of International Child Abduction.

McGovern v. McGovern, No. 2-CA-CV-01-0016 (Arizona Court of Appeals, October 10, 2001): The grandparents appealed a judgment denying their request to obtain visitation with their granddaughter. The court held that the Arizona grandparent visitation statute was constitutional, as it had a number of safeguards for the parents. The case was remanded to the trial court to conduct a hearing considering the benefits of visitation to the child in light of the constitutional safeguards afforded the parents.

Skov v. Wicker, No. 85,916 (Kansas Supreme Court, October 19, 2001): The application of K.S.A. 2000 Supp. 60-1616(b) with no limitations on granting grandparents visitation violates a parent’s fundamental right to custody, care, and control of his or her child under the Fourteenth Amendment to the United States Constitution. K.S.A. 2000 Supp. 60-1616(b) is, however, construed to be constitutional and does not violate the Fourteenth Amendment to the United States Constitution so long as the burden of proof is upon the grandparents to show such visitation is in the child’s best interests and that a substantial relationship with the grandchild exists. In addition, special weight must be given to the fundamental presumption that a fit parent will act in the best interests of his or her child.

Gruber v. Gruber, No. 0341 (Maryland Court of Special Appeals, October 31, 2001): The trial court in Tennessee determined that Tennessee, where the mother and child had lived until she left the state, was the child’s home state under the UCCJA. Then, the trial court in Maryland determined that Maryland was the child’s home state. The court held that Maryland erroneously asserted jurisdiction, because the mother deliberately misled the father regarding her plans, preventing him from filing for custody in Tennessee during the six-months the mother and child were establishing residency in Maryland.

Heltzel v. Heltzel, No. 97-000316-DM (Michigan Court of Appeals, October 23, 2001): Mother appealed the award of physical and joint legal custody of her child to her parents, the child’s maternal grandparents. The question presented was whether the trial court erroneously assigned to the mother the burden to prove that the child’s placement with her was in the child’s best interests, because an established custodial environment existed with the grandparents, and whether the court’s application of the Rummelt test constituted clear legal error and violated mother’s fundamental liberty interest in raising her children. The appellate court held that placing the burden of proof on the mother was error and reversed and remanded.

Ficker v. Ficker, No. ED77871 (Missouri Court of Appeals, Eastern District, October 23, 2001): The husband argued that the court impermissibly, in violation of the First Amendment, considered his affiliation with the Church Universal and Triumphant. The appellate court held that while inquiry into religious beliefs per se is unconstitutional, the court may make such an inquiry as it relates to the well-being of the children. In this case, there was evidence that the church was a cult whose beliefs would impact adversely on the children.

Golian v. Golian, No. A-4211-99T5 (New Jersey Superior Court, Appellate Division, October 11, 2001): In a break with other states, the court held that when a person has been determined disabled by the Social Security Administration, there is a presumption that such a person is in fact disabled and unable to earn income. The burden of proof that the person can earn income is on the other party.

D’Onofrio v. D’Onofrio, No. A-5492-98T1 (New Jersey Superior Court, Appellate Division, October 2, 2001): The mother appealed the award of primary custody of children to the father. The mother’s primary argument was that audio tapes of coarse telephone conversations between the mother and the children should not have been admitted. The court held that the father could give “vicarious consent” on behalf of the children when the tapes were made, and thus the tapes were not made in violation of New Jersey’s Wiretapping and Electronic Surveillance Act.

In re Gadbois, No. 2000-026 (Vermont Supreme Court, September 26, 2001): An attorney appealed the Board’s decision that he violated DR 4-101(B)(3), DR 5-105(A), and DR 1- 102(A)(7) by representing a husband in a divorce proceeding could then represent that client’s second wife in the second divorce proceeding. The Supreme Court held that this was not a violation. Editorial note: I wouldn’t do it, and neither should you.