A custody arrangement that provides for "Internet visitation" with videoconferencing and e-mail has been approved by a U.S. District Court in Colorado.
Recently, many divorce lawyers have been proposing Internet visitation to persuade judges to let custodial parents move far away.
This is apparently the first federal court to endorse the idea, and the language approved here could be used in other cases. (The case was in federal court because it involved an international dispute under the Hague Convention.)
Earlier this year a New Jersey appellate court approved the concept, calling it "creative and innovative."
Under the Colorado settlement, the child will move to Spain with his father while his mother remains in the U.S. The agreement spells out how both e-mail and videoconferencing will be used, the type of equipment to be used and who pays for it, and how the parties' privacy will be protected.
"In virtually every interstate [and] certainly in any international case, we are attempting to insert enforceable provisions regarding electronic communications," says Russel Murray, a small-firm lawyer in Aurora, Colo., who represented the mother in the Colorado case.
"This case is a perfect example of how people are using technological tools as one avenue to preserve a relationship and to reach a settlement," says Stephen Harhai of Denver, who lectures around the country on how family lawyers can use such technology.
The Colorado agreement provides that the parents will have joint custody, including shared decision-making on all issues. In addition to establishing an actual visitation schedule for the mother, the settlement provides for "Internet visitation" and requires the father to:
Details about equipment and who pays.
The agreement should also make clear who is responsible for providing the necessary technology - computer, hook-up, web camera, e-mail access, etc. - to the child and the non-custodial parent.
Typically, "the moving parent should pay for it," says Robertson.
An agreement might also require computer and Internet training for parents who aren't computer savvy.
"The issue needs to addressed to be sure they become comfortable," says Murray.
Another key element that that must spelled out is the required quality of the communication lines.
Murray notes that the Colorado agreement "specifies a DSL line or greater quality bandwidth."
But Harhai points out that the agreement only specifies the bandwidth for the mother, and doesn't say anything about the child. "You can have all the bandwidth you want on one end, but if the connection that the child has on the other side is slow, interactive videoconferencing will be difficult."
U.S. District Court for the District of Colorado. Hernandez-Mora v. Jex, No. 01-WY-1009-CB. July 12, 2001. Lawyers Weekly USA No. 9921250.
Questions or comments can be directed to the writer at: rgertner@lawyersweekly.com
How ‘Internet Visitation’ Works
Generally, Internet visitation involves setting up a website in conjunction with video cameras for both the child and the absent parent.
This allows them to talk to and see each other when they type in each other's address, says Denver attorney Stephen Harhai.
The website can be updated as the child brings work home from school using a scanner, he says. "Putting in and running a scanner is no big deal."
The site could also allow the child and parent to share photographs, notes Aurora, Colo., Russel Murray, who represented the mother in the federal court case.
"You could take pictures of today's dance recital or baseball game and have them posted online within an hour," he says.
Another option is an interactive website with a "web camera," which can be accessed by anyone over the Internet. This allows the absent parent to view things like school events and sports games.
"It's conceivable you can take the laptop, go to the little league game, put the computer on a bench and broadcast it live on the Internet," says Harhai.
It would also be possible to make a digital videotape of an event, download it to the computer and transmit the file via the Internet afterwards, he says.
Because this use of the Internet is so new, companies are just starting to work on setting up websites and video conferencing specifically for these purposes.
Chris Tuey, a software developer in Denver, says he has created a prototype for software that would allow divorced families and others to communicate by logging in to a secure system, without identifying their e-mail addresses and other personal information. The software would also include a scheduling program and allow the parties to keep expenses straight.
Existing software such as Microsoft Windows NetMeeting can be used for voice transmission and an inexpensive camera can be added for each party, says Harhai.
NetMeeting also allows "file-sharing," which the parent and child can use to view the same document at the same time, such as homework, he notes.
For a successful interactive website with a high-quality picture, it's also necessary to have a high-speed Internet connection.
The agreement in the case Murray handled, for example, requires a DSL line or greater quality bandwidth.
Instant-messaging and e-mail only require that both parties have e-mail accounts and an Internet service provider that has instant-messaging capabilities, such as AOL.
When Should You Try It?
E-mail and instant-messaging are already used frequently in relocation cases, so interactive websites may be seen as a logical extension of the trend.
However, the Internet certainly can't replace physical contact with a child or presence at the child's school events, so it may tip the scales only in close cases, experts say.
"It's a nice Band-aid for the problem, but it's not a substitute for actual visitation with the child," says Denver family lawyer Ron Litvak.
Some family lawyers say they would suggest using an interactive website in most cases where a custodial parent wants to move. But they agree that the decision must be made on a case-by-case basis.
"We look at the willingness of the parties involved to consider creative options, the capabilities of the individuals financially and technologically, and whether the appropriate technology is available to them where they reside," says Murray.
Experts also say that convincing a judge that a website will enhance visitation may require an active demonstration at trial.
Here's a look at some factors to consider:
* How Old Is the Child?
As a rule, family lawyers agree that the younger the child, the less likely it is that an interactive website will persuade a judge to allow a move.
"For very young children, I don't think you can maintain a child's attention unless you have cartoons going on in the video," says Chicago family lawyer Michael Minton, who has written extensively about custody litigation.
Paramus, N.J., family lawyer John Finnerty says he represented a mother in a case where the non-custodial father argued that she was interfering with Internet communication when the problem was actually the young child's attention span.
Internet technology would be most useful in cases where the child is a pre-teen or teenager, says family lawyer Kathleen Robertson, who practices in San Mateo, Calif.
* How Involved Is the Other Parent?
In general, the more active a parent is in a child's daily life, the less likely he or she is to see Internet visitation as sufficient interaction.
"In a case where the father went with his kids to their school meetings, was a coach on a baseball team and saw the kids in a Halloween parade, how does this replace that?" says Elliot Gourvitz of Springfield, N.J., who practices with a two-lawyer firm specializing in family law.
"It's difficult to interact spontaneously through a computer," notes David Levy, a family lawyer in Chicago.
Further, although a visitation schedule can require that the technology be made available, it's difficult to mandate daily Internet communication.
"The plan has to be structured so it's not intrusive on the current day-to-day life of the child or parent," says Murray. This can be especially difficult in cases where there's "a big time difference," he says.
"Particularly for adolescents, it would be hard for them to [have to] be in a certain place at a certain time," says White Plains, N.Y., attorney Kathleen Donelli, who has handled many relocation cases.
* Can the Parents Cooperate?
Experts say that technology is more likely to be seen as a viable complement to a visitation plan if the custodial parent was cooperative about visitation when the two parents lived in the same place.
"If there are warring parents, you're going to have problems," says Robertson.
Cooperation is particularly important because all sorts of complicated problems can arise with high-tech interactions, such as computer breakdowns and possible sabotage by one of the parents or an outside party, says Harhai.
On the other hand, some courts have actually been requiring divorced parents to communicate exclusively via the Internet to minimize tensions, says Minton.
You can get more information on video conferencing software at: http://www.microsoft.com/windows/netmeeting
Sample Language for ‘Internet Visitation’ Agreement
Here's the language regarding "Internet visitation" that was used in the Colorado agreement.
Experts say the same or similar language could be used in other relocation cases.
Telephone, E-Mail, and Videoconferencing with the Child - Parental Communication Regarding the Child.
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.
© 2001 Lawyers Weekly Inc., All Rights Reserved.
