Virtual Visitation

As a parent, one of the most difficult aspects of divorce is suddenly having to share time with your child. This can be particularly excruciating, if you are a non-custodial parent, who no longer gets to live under the same roof as your child. 

As a non-custodial parent, daily communication used to be something you didn’t think about. Nowadays, building a relationship with your child is contingent on being able to maintain a meaningful visitation schedule, which can be difficult, even in the best of circumstances. (Impossible, under the worst—thanks for that, COVID.) And this is before you even consider the unique challenges that families with international custody, traveling careers, and military obligations face. 

Lucky for us, we live a time of unprecedented technology, where communication is no longer limited to in-person contact. In certain situations, these virtual tools can be incorporated into your custody agreement, to help supplement your parenting time. 

What is Virtual Visitation?

In order to understand exactly what virtual visitation is, it’s important to first have at least a basic understanding of how California courts handle custody. 

Custody refers to the broad range of parental rights and responsibilities that have to be divided when parents get a divorce. To this end, the court can divide custody by either giving all the power to one parent (sole custody), or making them share (joint custody). Since it’s nearly impossible to split a child’s time exactly fifty-fifty, the court will then typically make one spouse the child’s primary residence, while the other is awarded ample visitation. 

Visitation, then, is essentially all that time a non-custodial parent gets to spend with their child. And for a really long time, that’s all it was: in person contact. Visitation either happened physically, or it didn’t happen at all. 

Luckily, the past decades have moved us well beyond our Neanderthal ways, and when it comes to visitation, non-custodial parents are no longer quite so constrained by physical limitations. With a huge variety of technological advances at our fingertips, the parent/child relationship can be strengthened virtually, as well. 

Hence, virtual visitation is defined as any parent/child contact that is facilitated through the use of technology. 

Examples of Virtual Visitation

Virtual visitation’s broad definition encompasses a wide range of platforms and tools, and isn’t limited to just phone calls. Instead, parents have a wide variety of options, including: 

• Phone calls and text messaging;
• Data plan facetime;
• Webcams and online video chats;
• Email and instant messaging; 
• Online gaming; 
• Private document sharing sites, such as Dropbox and Google Drive; 
• Photo sharing sites, such as Shutterfly, Flickr, and Picasa; and,
• Social media posts, personal messaging, and sharing, through platforms like Facebook, Twitter, Snapchat, and TikTok.

With virtual visitation, a parent can help with homework, read a bedtime story, share the excitement of a special achievement, “attend” a performance, and offer emotional support, even if they can’t be there in person. 

Virtual Visitation Laws in California

Virtual visitation is still a relatively new concept, and there are currently only a few states with official legislation that address it, including Utah, Texas, Wisconsin, Illinois, North Carolina, and Florida. As you can see, California isn’t one of them, but in our ever-expanding world of global interaction, it may be only a matter of time. 

That being said, whatever your judge includes in your custody order is enforceable by law—including any kind of electronic communication. California courts routinely include virtual visitation as a part of custody orders, and the failure of either party to uphold these important terms can result in fines, a loss of custody, and in some situations, contempt of court. 

During divorce or custody modification, parents can either mutually agree to include virtual visitation in their parenting plan, or else request that the court include it in the final order. In these situations, your judge would assess your circumstances to see if electronic communication is a viable option for your family. 

When Does the Court Allow Virtual Visitation?

The 2020 COVID pandemic threw the world into the kind of crisis most people probably never even thought to consider, let alone worry about. As lockdowns, travel bans and mandatory quarantines forced global markets to a halt, California legislators were forced to weigh the risk of spreading the disease against the need for visitation. 

This crisis resulted in a sudden, unexpected reliance on virtual visitation, which most divorced families took part of in some way. However, long before COVID became a household word, electronic communication was already being used by California courts to supplement in-person visits.

Virtual visitation is particularly useful for cases involving international custody, military custody, move away requests, and even extended business trips, for parents whose careers require frequent travel. 

Guidelines for Virtual Visitation

Since electronic communication isn’t officially part of California family law, judges don’t have a specific set of criteria or formula they can apply to these situations. 

Instead, the court analyzes what would be in the child’s best interest, and loosely considers whether parents:

1. Will permit and encourage their child to engage in virtual visits; 
2. Have the tools to facilitate their child’s visits; 
3. Are capable of carving out the necessary time; and, of course,
4. Whether each has the emotional bandwidth to allow their child to have uncensored communication with the other.

The court is unlikely to grant e-communication in situations of abuse or domestic violence, or when supervised visitation is required. And, as a whole, virtual visitation is most successful for parents who can set aside differences and work harmoniously with one another. 

All that aside, if the COVID pandemic has taught us anything, it’s that while virtual visitation can be a vital tool in certain situations, it’s certainly no replacement for in-person contact.   

The Drawbacks of Virtual Visitation

For parents who are limited by time, distance, or obligation, virtual visitation opens up an array of opportunities for them to maintain contact with their child. However, this technology has also drawn criticism from those who argue that e-communication is a poor substitute for in person face time. 

Some of the arguments against virtual visitation include:  

• The negative impact of too much screen time on a child; 
• The burden it could place on a child’s already busy schedule; 
• The burden it places on a parent’s time and resource; and, 
• The ineffective, two-dimensional nature of e-communication (for instance, how easy it is to misread context and tone).

As California legislators consider whether or not to standardize virtual visitation in family law, they’ll need to examine some of these legitimate drawbacks, and analyze whether these technologies hinder—rather than actually help—parents and children foster deep, meaningful relationships. 

They are also drawbacks that you should discuss with your family law attorney, if you and your spouse are considering making virtual visitation a part of your parenting plan.  

Virtual Visitation Attorneys in California

If you have more questions about virtual visitation, and whether it’s appropriate for your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help you figure out the visitation arrangement that will work best for your family.