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Virtual Visitation Provides Supplemental Rights

Family & Matrimonial Law

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A hypothetical scenario –A divorced couple develops a child custody plan where the non-custodial father has visitation with their three children every other weekend. The plan works well for the first two years, but then the father moves to a different part of the United States to start a new job. Suddenly, there isn’t a reasonable way for the father to continue the same visitation plan with the children.

The parties however still want to make certain the children can still see their father on a regular basis, but it isn’t feasible or affordable to buy plane tickets to allow them to go very often. Likewise, the father can’t afford to travel back to see them as often as he would like.

Fortunately for them, virtual visitation is a possible workaround to maintaining the father’s child visitation and connections. Virtual visitation allows non-custodial parents to use video chatting as a means to maintaining contact with their children. The parents merely need to agree to allowing and encouraging video chats at reasonable hours and without censorship.

In the past, divorced parents who had moved far away from each other relied on phone calls to allow the non-custodial parent to have contact with their children. However, that approach was not seen as the best alternative to visitation rights, as the non-custodial parent could not ‘see’ his or her children, nor could the children ‘see’ their parent. This often created a disconnect between the non-custodial parent and the child.

Recent technological developments have changed the game, though. Video chatting is exploding in the United States thanks to apps such as FaceTime, Skype, Facebook Messenger, Snapchat and others. Cell phones, tablets, laptop computers and desktop computers typically have cameras built in to allow for instant visual communication. Now, a divorced mother living in California can watch her son play soccer in Florida or even help him with his homework via the internet and her ex-husband’s cell phone camera.

As a result, requests for virtual visitation are growing by leaps and bounds. While these experiences do not replace traditional visitation, they do allow non-custodial parents to remain engaged with their children’s lives in a way previously unavailable. A Family Court or Matrimonial Judge will determine whether virtual visitation will be granted, under what circumstances, or the parents themselves can agree to this type of connection.

Currently, several states have passed virtual visitation laws, and others are considering legislation to allow it. Even states that do not have or are not considering virtual visitation laws at the moment – such as New York – are allowing judges to decide whether to grant it, or accept a parenting plan that includes virtual visitation. Given the popularity of this form of communication, it’s likely that most, if not all, states will soon have virtual visitation laws on the books.

While this is good news for divorced parents who wish to continue sharing custody of their children, or for separated parents trying to maintain a real and present relationship with their children, they should be aware that they will still need to establish traditional visitation rights, no matter how far away they live from each other. Even if the non-custodial parent can only see his or her children once a year because distance dictates it, that still must be established. It is important to remember that not all social media virtual connections are the same. Some virtual connections are instantly deleted, so no record remains of the contact or connection. Sometimes, the ability to replay a virtual visit with a child is helpful to remind the child of their contact and connection. To be able to replay the virtual visit can assist the child in maintaining the connection with the parent that is far away, and can make the distance seem meaningless since Mom or Dad can be present with the child on a regular basis, in a way that a telephone call cannot replicate.

If you are in a situation where you need to establish virtual visitation to see and maintain a real and present connection with your children, you should consult a Family & Matrimonial attorney familiar with this option in establishing a parenting plan, and who can guide you through the process.

Christine F. Redfield, Esq. is a family and matrimonial attorney at Tully Rinckey PLLC’s Rochester office who focuses her practice on divorce and child custody cases.

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