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The Virtues of Virtual Parenting

FindLaw columnist and Hofstra law professor Joanna Grossman discusses
a recent New Jersey case that raises an interesting question: Could
Internet communication using webcams, instant messages, e-mails, and so
on, count towards a noncustodial parent's visitation schedule with his
or her child? If so, it may be easier for custodial parents to get court
permission to move with their children to a distant state over a
noncustodial parent's objection.

FindLaw's Legal Commentary
Tuesday, Dec. 18, 2001

Can The Internet Replace Visitation When A Custodial Parent Relocates?

An appellate court in New Jersey recently chastised a lower court for
failing to give adequate consideration to an "alternative visitation
schedule" by which a non-custodial father could have day-to-day contact
with his daughter. The schedule - which was proposed by the child's
mother, who was seeking permission to relocate from New Jersey to
California - provided for "visits" accomplished not in person, but by
web-site and camera-computer technology.

In a country where one in five families moves each year, the request by a
custodial parent to relocate is far from unusual. Relocation often
translates to a drastic reduction, if not complete elimination, of contact
between a child and his or her noncustodial parent. Accordingly, whether
to grant a relocation request is not a decision courts make lightly. The
role of the Internet in bridging the gap created by relocation is worth

The Traditional Approach to Requests for Relocation

Traditionally, courts were downright hostile to requests by custodial
parents-mostly women-to relocate away from a noncustodial parent with
visitation rights. In part, that is because American courts take
visitation seriously. They presume that children benefit from maintaining
a regular, ongoing relationship with both parents, notwithstanding their
parents' divorce, and visitation facilitates that goal.

Noncustodial parents are thus presumptively entitled to visitation with
their children absent a showing of harm to the child as a result of the
visits. Typical visitation arrangements, whether by private agreement or
court mandate, tend to combine some regular weekly or bi-weekly visitation
with some extended visits during summers or holiday breaks.

The challenge of relocation is that the regular visits are often made
difficult or impossible because of time or expense. That means that the
noncustodial parent's visitation is instead collapsed into one or two
extended visits. And those visits may require the parent to fly a great
distance to pick up the children and to return them.

Courts traditionally required the custodial parent to prove not only that
the move would not harm her children, but also that it would provide the
children with some distinct advantage-better economic security, closer
relationships with extended family, or better opportunities for education
or other activities. In addition, many required that the relocation not
impair "meaningful access" to the other parent. Taken together, these two
requirements made it difficult for a custodial parent to prevail on a
petition for permission to relocate.

Critics of this traditional approach have pointed out that these rules
make it difficult for women, who comprise most of the sole custodians, to
pursue meaningful careers or educational opportunities-a fact that
compounds the economic disadvantages of divorce.

They have also pointed out that this strict approach interferes with a
traditionally recognized zone of family privacy within which parents make
decisions about their children's lives. Finally, being tough on relocation
also makes it easy for a noncustodial parent to hold the custodial parent
hostage in the marital hometown for no better reason than spite.

The Modern Approach to Relocation

Over the past decade, many states have retreated, in different ways, from
this traditional approach. (A few states, however, retain the traditional,
strict approach.)

For example, instead of requiring that relocation be better for the
children than staying put, some states simply require that the custodial
parent proffer a good faith reason for the move. Other states have erected
a presumption that the custodial parent has the right to move absent a
showing of harm to the children. And others have put the burden of proving
harm on the noncustodial parent objecting to the move, rather than the
custodial parent proposing it.

Under any of these approaches, it is easier for a custodial parent to
succeed in an attempt to relocate. But courts still focus on what's good
for the children, and the issue of compromised visitation still troubles
them. That is where the Internet may play a role.

The Role of the Internet in Child Custody Decisions

A search of recent custody cases shows that the Internet has already made
a mark on child custody cases.

For instance, it has been blamed for the break-up of marriages (leading to
custody fights) when one spouse engages in "cyber-affairs." It has been
the basis for a finding of contempt, when a mother's use of the Internet
tied up the phone line during the hours designated for the noncustodial
parent to call and talk to his children.

Moreover, a mother accused of having an "Internet addiction" was required,
as a condition of temporary custody, not to use the Internet for any
purpose. And access to the Internet has been a factor used by courts in
choosing the best home for the child at stake in a custody fight.

The Role of the Internet In Visitation

The role of Internet in visitation, however, is somewhat different. The
argument is that with modern technology, the traditional belief that
custodial parental relocation means an almost automatic severing of ties
between children and their noncustodial parent may no longer hold true.
Instead, noncustodial parents can retain some of the benefits of physical
closeness even when their children move to a remote location.

In the New Jersey case mentioned above, the mother's proposed plan
contemplated a set-up that would facilitate face-to-face communication
between the child and her father, as well as allow the father to review
and correct her homework. Other family and friends, also left behind by
the relocation, would also have the opportunity for electronic, visual
contact with the child.

Nevertheless, the trial court rejected the petition for relocation. Among
other findings, he found that the suggested visitation-including daily
Internet communication-would be an insufficient substitute for in-person
weekly contact and communication.

The appellate court, in contrast, was more open to the novel approach,
which it characterized as both "creative and innovative." Accordingly, it
remanded the case to the trial court, with directions for the trial court
to reconsider its decision with a more open-minded attitude toward
technology, and to make sure it was applying the modern, less-restrictive
standards for evaluating petitions for relocation.

A recent New York case, Kime v. Kime, however, took a view very similar
to that of the New Jersey trial court, believing they can be no substitute
for in-person visitation. There the court, applying a multi-factor test
designed to measure the best interests of the child, rejected the idea
that communication by letter, fax, or e-mail could replace actual visitation.

What Does the Future Hold?

To be sure, lots and lots of noncustodial parents in fact rely on the
Internet to communicate with their children, just as generations of
divorced parents have relied on letters or even faxes to keep in touch.
This form of communication is certainly desirable as a supplement to
in-person visitation.

But the question is whether Internet communication, with all the modern
innovations it entails, should be given some kind of legal recognition as
a facilitator of "super-communication"-communication that is intense,
regular, or meaningful enough to be given special weight in relocation
cases, because in some sense, it almost constitutes, or at least
approaches, actual in-person visitation.

There are very few cases on the subject, and the two recent ones take
opposite approaches. Technology is bound to play a role in this area of
law, but the extent of its impact remains to be seen.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at
Hofstra University. She has previously written for this site on other
family law issues; her columns on these and other topics can be found in
the archive of her columns on this site.

Copyright 1994-2001 FindLaw
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NOTE: if this is so great, they why doesn't the custodial parent turn over custody and visit the kids in the way they are suggesting the other parent to do?



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