Not so far apart – Virtual visitation in relocation disputes

November 1st, 2013
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By Izette Knoetze

Child relocation disputes are a reality that parents often encounter after divorce. It generally refers to a change in the place of residence or change of domicile of the child. The courts have recognised the need for children and parents to continue relationships with and have support from both parents following a divorce. Numerous support systems and shared parenting arrangements are applied by the courts to assist with this.

Virtual visitation is one support system that the courts have implemented to assist parents and children in the continuation of their relationships after parental separation and relocation. This is also called internet visitation or electronic communication, and refers to the use of e-mail, instant messaging, webcams and other internet tools to provide regular contact between a non-custodial parent and his or her child (J LaMarca ‘Virtually possible – using the internet to facilitate custody and parenting beyond relocation’ Rutgers Computer and Technology Law Journal (2012) vol 38 at p 146).

Parental relocation is a typical scenario where virtual visitation is ordered. In these instances the court could be requested to make an order to regulate virtual visitation rights and thereby enabling the non-custodian parent to stay in contact with a child via the use of computer technology.

International case law

Courts have ordered virtual visitation in numerous relocation cases some of which are discussed below.

As early as 1999, the courts in North Dakota, United States (US) embraced modern communication technologies as tools to facilitate child visitation. In the case of Gilbert v Gilbert 730 N.W. 2d 833 a mother sought to relocate with her child from North Dakota to West Virginia to pursue enhanced job opportunities. The trial court denied the relocation. The appellate court overturned that decision and specifically directed that the lower court consider virtual visitation tools. It stated that the trial court could include the use of the telephone, internet, webcam and other wireless or wired technologies in its judgment to ensure that the child had frequent and meaningful contact with the non-custodial parent.

Virtual visitation in New Jersey, US, received its first endorsement in the case of Chen v Heller 759 A.2d 873 (N.J. Super Ct App Div 2000). In this case the plaintiff (the mother of the child) requested permission to relocate with the child. In response, the father objected to the petition for relocation and submitted a cross-motion for enhanced visiting time. The trial court denied the mother’s request to relocate, but ordered that each party set up computer-assisted video conferencing in their respective homes at their own cost to facilitate continued contact for the children with each parent. The appellate division reversed the denial of the plaintiff’s motion for relocation, however, it continued the order for both parents to set up video conferencing in their respective homes at their own cost.

Family courts in Canada are increasingly incorporating virtual visitation in contested relocation cases. The courts have rendered conflicting decisions on whether or not virtual visitation should be used and, if so, the extent to which it should be used. In Shiplack v Shiplack 2008 SKQB 254, SJ No 392 the court gave permission to the custodial parent to relocate to Alberta with her child. While virtual visitation was not pertinent to the access order, the court encouraged the use of a webcam and other alternative forms of access to maintain the parent-child relationship.

In the matter of Cochrane v Graef 2010 ONSC 4479, OJ No 3756 the Ontario Superior Court of Justice considered the proposed access through virtual visitation of the mother. In permitting the relocation, the judge increased the amount of physical visitation with the father and ordered that visitation be supplemented with ‘reasonable telephone and webcam access’.

One of the factors that the Canadian courts have taken into consideration is the age of the child. The courts have taken a cautious approach in their use of virtual visitation in cases where the youngest or only child was of a pre-school age. In ADP v TEW [2005] NSFC 22, NSJ No 497 the court discussed the use of virtual visitation by a two-year old child. The court held that it was inappropriate, given the age of the child.

South African case law

The use of visual electronic tools and applications, such as Skype and other webcam applications, were highlighted by the courts in two South African judgments. In the two matters below, the court granted one of the parents access to children through the use of Skype. One such instance is the case of Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP), where the applicant and the respondent discussed divorce and settlement issues via the use of Skype.

Another example where the court granted access to children via Skype was in the case of HS v WS 2012 JDR 1066 (GNP). In this case, the court made an order directing the plaintiff and the defendant to install an internet landline, such as ADSL, at their respective residences and ordered that the plaintiff should load Skype access on the minor children’s iPods. The defendant was also allowed to have Skype contact with the minor children every Saturday at certain hours. Prinsloo J noted that the plaintiff should encourage the children to correspond with and contact the defendant and facilitate telephone and Skype contact as far as reasonably possible (at 45).

In CG v NG 2012 JDR 1795 (GNP) the court made a draft order regarding telephonic and Skype contact. This was also the case in the matters of RC v CS 2011 JDR 1583 (GSJ), DV v SO 2010 JDR 1038 (GNP), K v K 2009 JDR 0419 (GSJ), Scheepers v Scheepers 2009 JDR 0911 (GNP) and HS v WCS (GNP) (unreported case no 3524/09, 22-6-2012) (Prinsloo J).

Legislation

Legislation pertaining to virtual visitation is already in effect in some US states. Utah enacted legislation in 2004, Wisconsin in 2006 and both Texas and Florida in 2007.

In 2009, North Carolina amended its general statutes to allow virtual visitation. North Carolina’s custody statute now allows a judge to authorise electronic visitation if certain findings are reached and to establish the parameters of such visitation. The factors considered by the court are as follows: ‘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 and any other factor the court deems appropriate in determining whether to grant visitation by electronic communication’ (CE Doucet ‘“See you on Skype!”: Relocation, access, and virtual parenting in the digital age’ Canadian Journal of Family Law (2011) vol 27 at pp 340 – 341).

Illinois soon followed and enacted legislation in 2010. The most recent state to enact legislation is Hawaii who incorporated virtual visitation into law in 2011. Australia also amended its Family Law Act of 1975 to include a broad provision for electronic communication between parents and children in 2006.

Conclusion

I submit that parents seeking to relocate should consider all available technology to maintain their children’s ties with the non-custodian parent. Internet connections are a common fixture in many South African households and webcams are affordable. The internet can be an instrument for a ‘face-to-face’ encounter between a parent and a child, but video conferencing with one’s child, just like a telephone call, should be used as a supplement to and not a replacement for physical visits and personal communication.

I am of the opinion that the use of these tools is a powerful means to providing parents with immediate access to children. Virtual visitation has the added advantage of enabling children to enjoy private, unrestricted telephone and video access to parents. I submit that virtual visitation is not only a useful tool to encourage communication when children and parents are separated but also a viable alternative in circumstances where children could be endangered by physical contact with a parent, or for children who are less verbal and rely more on visual stimuli for processing new experiences.

Virtual visitation can provide more meaningful development of a parent-child relationship than mere telephone conversations. It is said that virtual visitation helps ease the tensions that come with divorce and makes it more likely that non-custodial parents will pay their child support regularly.

South Africa, like other countries, should enact legislation that addresses the issue of virtual visitation. This will serve as guidance to courts in determining the extent to which virtual visitation should be used in relocation disputes after divorce. Legislation should contain a definition of virtual visitation and outline the scope of its use.

Some experts warn that the battle over virtual visitation often does not end with a settlement agreement or court order. The conflict often shifts to disputes over computer purchases, installation, repairs, e-mail accounts and timing of online chats.

It must be emphasised that virtual and physical visitations are not interchangeable. The internet, although being convenient and efficient to bring two people closer no matter how far they are physically distanced, will never be capable of fulfilling all of the benefits of physical interaction between parents and children. Therefore, virtual visitation could be a powerful alternative, but not the total solution for interaction between children and parents.

Izette Knoetze LLD (UFS) is a legal researcher at Legal Aid South Africa in Johannesburg.

This article was first published in De Rebus in 2013 (Nov) DR 24.