Virtually possible - using the Internet to facilitate custody and parenting beyond relocation.

• Author: LaMarca, Jason

Child custody problems in divorce judgments are an unfortunately common issue in American society. In 2009 there were 6.8 million marriages and 3.4 million divorces. (1) This equates to a divorce rate of 50%. (2) The destruction of a family unit in divorce, and the subsequent resolution of custody issues afterward, have profound effects on the children of a dissolved marriage. (3) The courts and state legislatures have recognized the need of children to continue relationships with and have support from both parents following a final judgment of divorce (4) and have created numerous support systems and shared parenting arrangements to serve this need. (5)

The judicial system has adopted the mechanisms to support the interests of children, such as the abandonment of the tender years doctrine (6) and stricter enforcement of child support obligations. (7) A recent addition to child custody resolution is virtual visitation. (8) "Virtual visitation, also called Internet visitation, refers to the use of e-mail, instant messaging, webcams, and other Internet tools to provide regular contact between a noncustodial parent and his or her child." (9) The tools available today via the Internet can maximize the welfare of children by substantially increasing the ability of parents to exercise both their custodial and legal rights. (10)

Part I of this note begins with a brief explanation of child custody arrangements and issues in America and a brief review of social science literature to show why such modernization is beneficial. Next, Part II will review court decisions and legislative acts that states have used to facilitate custody arrangement and parenting with Internet tools. Finally, Part III will suggest new uses for existing remedies and suggest new applications that courts or legislatures could add to a judicial "toolbox" in order to maximize the interests of children and their parents.

1. CHILD CUSTODY ARRANGEMENTS

   1. Typical Custody Arrangements

      There are two types of custody a parent can be awarded. One is legal custody, which encompasses a parent's right to make major decisions for a child, to legally advocate for the child, (11) and to otherwise have the privileges afforded to parents by law. (12)

      The second type of custody, and the more relevant one for the purposes of this note, is residential custody. A parent with residential custody is the primary caretaker of and provides the primary residence for the child. (13)

      There are several ways a court assigns custody. One method is to assign joint primary residential and legal custody. This situation can occur in two ways: the unlikely situation where the former spouses continue to cohabitate in the same household, or the more likely scenario where both parents reside near each other and have equal amounts of parenting time. (14) A more common custody arrangement is where one parent has residential and legal custody while the other parent has legal custody and visitation rights. (15) Although, the current vogue is to refer to the parent with visitation rights as possessing secondary residential custody of the child. (16) This scenario is favored because traditional family law doctrine presumes that it is in the best interests of the child to have regular contact with both parents. (17) Finally, one last common custody arrangement is sole custody, where one parent has full residential and legal custody of a minor child. (18) This custody arrangement is most often used in cases where one parent is either unwilling or unfit to care for their child or where there is such animosity between the parents that the child would be adversely affected by those parents having any contact with each other. (19)

      The custody plan used in any divorce is intensely fact specific. (20) The judicial determination is guided, in virtually all states, by applying the underlying circumstances surrounding both parents to an assessment of what custody arrangement is in the best interest of the child based on those facts. (21) While many States have specific statutory factors that judges are supposed to consider in their grants of custody, the factors they use are approximations for determining the best interests of the child. (22)

   2. Relocation Jurisprudence

      Parental relocation is a typical scenario where virtual visitation is ordered. (23) A parent granted primary residential custody of a child who wishes to move to a new state following a divorce may not simply do so if they wish to take their child with them. That parent must go before a court and receive permission to relocate because of the effect it will have on both the child and the noncustodial parent. (24) It requires a balancing of the custodial parent's ability to pursue their life and interests against the noncustodial parent's interest in participating in their child's life. (25) Parents who wish to move often do so for the following reasons: a new spouse, a job opportunity, an escape from the shame associated with a divorce, or the desire to live closer to extended family. (26) Courts seriously consider these requests because, beyond equity requiring a court to respect a parent's life decision, research has shown that one of the strongest circumstances correlated to a child's post-divorce adjustment is the economic condition of the custodial parent. (27) Even when a child support order is complied with in full by the noncustodial parent, there is often a steep decline in the standard of living of a recipient spouse and their children. (28) Thus, if the basis for a move improves financial circumstances for the custodial parent, the child's best interest may be advanced by allowing it. (29) Additionally, the emotional health of the custodial parent highly correlates with a child's post-divorce well-being as it "ranks as one of the most powerful predictors of children's adjustment following divorce." (30) Thus even if the purpose of the move is for the custodial parent to relocate closer to family or a new spouse, it still may favor the child's best interest. (31)

      However, social science research also shows that a child's best interest is served by maintaining a joint custody relationship with both parents following a divorce. (32) Allowing a custodial parent to relocate to a distant state is detrimental to the relationship between a noncustodial parent and the child. (33) Additionally, relocation is often detrimental to a child's well-being by further disrupting the routine previously possessed and by removing support from their peer group. (34) These competing interests prove difficult to reconcile for family court judges when considering relocation motions.

      States often come up with complex multi-factor balancing tests to guide judges in this type of decision. (35) The common threads in these relocation standards is that they try to find a balance between the benefits of improved circumstances for custodial parents and the benefits of maintaining the relationship of noncustodial parents. (36) The obvious new obstacle for the noncustodial parent in these cases is the inability to interact with their child regularly. The inherent difficulty involved with weighing the factors both for and against such a move has often prompted judges from a wide variety of jurisdictions to become creative and improvise new remedies not contemplated by their legislatures or prior generations of jurists. (37) The creative remedy which they found and favored in an effort to increase custodial welfare while providing maintenance to the noncustodial relationship was to use modern telecommunications, specifically Internet visitation to reconcile these interests.

2. VIRTUAL VISITATION

   1. Judicially created Internet visitation

      New Jersey--Virtual visitation in New Jersey received its first endorsement in 2000. (38) Chen v. Heller involved a plaintiff mother requesting permission to relocate with her child. In response, the father objected to the petition for relocation and submitted a cross-motion for enhanced visiting time. (39) 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]....'" (40) The appellate division reversed the denial of the plaintiff's motion for relocation, however continued the order for both parents "to set up video conferencing in their respective homes at their own cost." (41)

      The original judge's use of video conferencing software as an instate remedy is unusual, as the majority of cases and statutes involving Internet visitation implicate a move across state lines. (42)

      The next major New Jersey case related to Internet visitation was McCoy v. McCoy. (43) McCoy was a relocation case where a mother sought to move her special needs child from New Jersey to California in order to take a position as a web designer. (44) In the mother's visitation plan she said that she would design a website "which would include the use of camera-computer technology to give defendant [and] his family and friends, the ability to communicate directly with [the child] on a daily basis and review her school work and records." (45) The trial court denied the relocation petition stating that, among other reasons, the visitation schedule was insufficient to maintain the relationship between father and daughter. (46) The appellate court overturned the relocation denial, specifically stating that the "plaintiff's suggested use of the Internet to enhance visitation was both creative and innovative" and that the "judge failed to adequately consider alternative visitation plans." (47)

      The supplement of traditional visitation with virtual visitation adopted in McCoy has since been used in more recent cases, (48) however it's hard to determine its overall pervasiveness as New Jersey declines to publish the majority of its family law cases.

      North Dakota--Another...