Tag Archive for 'visitation'

Will Virtual Visitation Become the New Child Custody Norm?

For most of us, the internet has been seeping into the cracks of our personal lives for quite some time now.  But not all of us anticipated just how far reaching such technology could be.  To illustrate, a growing legal trend now grants non-custodial parents visitation rights with their children over the internet through webcam video conferencing.

This is called “virtual visitation”, also known as “e-visitation” or “e-access”, and it is slowly but surely gaining momentum in states around the nation.  It began in Utah back in 2004 and is currently available in five other states: Florida, Illinois, North Carolina, Texas, and Wisconsin.  Over 20 states are currently contemplating virtual visitation laws.

Virtual visitation allows the parent to contact their child via webcam rather than the traditional physical transfer of custody.  This would allow parents to increase the amount of contact when they are separated from the child.  Virtual visitation usually refers to video communications, but statutes may also include other mediums such as texting, instant messaging, e-mail, and phone calls.  It is particularly helpful in circumstances where the parents are separated by long distances.

Now, virtual visitation is not meant to replace traditional visitation where the parent and child actually spend time in each other’s presence.  It is treated more as a form of supplementation that is intended to keep the parent and child updated with one another.  It is up to the court’s discretion as to whether or not they will allow virtual visitation.  In one case, a New York judge even ordered “Skype visits” as a condition of the mother’s move to another location.

So, is virtual visitation ideal for everyone?  When is it considered to be a good option?  Here are a few of the pros and cons of virtual visitation:

Pros:

A growing need for more contact:  Parents in general (not just those affected by divorce or separation) have less time to devote to quality time with their children.  This is mostly due to issues related to work: a bustling workday, long commutes and traffic, and multiple jobs can all cut into a parent’s free time.  This is especially true of separate parents, who must often travel even further just to see their child.  Virtual visitation is a way for many parents to share time with a child when they cannot otherwise do so.

Accessibility of technology:  Previously, web cam chatting was sparse and faulty at best.  Slow download speeds, choppy images, and frequently interrupted connections made video conferencing difficult.  Now, web cam applications are becoming more affordable and the overall experience is more enjoyable.  Smart phone applications can also make virtual visitation easier (although some skeptics predict that the iPhone 4’s Face Time feature may eventually flop).

For many children and youths, virtual relationships are the norm:  It can be argued that chatting via webcam is not the ideal way to raise a child, which I certainly agree with.  Certainly nothing can replace personal, face-to-face social interaction.  However, a good percentage of children already maintain several virtual relationships online, mostly with friends and classmates.  Further, it can easily be said that some children interact with their peers online more than they do in person.

Thus, virtual visitation can be seen as a way of “leveling” with the child, or in other words, meeting them on their own turf.  For the parents and older generations, the internet is a new invention, a novelty that took their lives by storm.  However, for the children, the internet is a basic staple of their lives, something that they were born into (just like *real* books and toys were for us).  So, virtual visitation might not actually be as much of an adjustment for the child as it will be for the parent.  For the child it can be compared welcoming a person into your own personal arena or zone.

Some Cons of virtual visitation:

Lack of uniform rules:  Only a handful of states actually grant virtual visitation.  Of the ones that do, the network of laws governing virtual visitation are vague and inconsistent.  Many statutes simply list electronic communication as an acceptable method of visitation.  The laws do not address such specific issues like how long the virtual visitation is supposed to last, when it can be done, by which parents, and when virtual appointments should be made.  This can lead to conflicts in scheduling between parents.  One parent even complained that constant attempts to videochat by the other parent were cutting into her own private time with the child.

Virtual visitation allows for only limited interaction:   Parents who engage in virtual visitation are severely limited in terms of what they can do with their child during an online “visit”.  You cannot help a kid tie their shoes, play catch with them, or dress a wound over the internet.  Probably the most useful activity that can happen is for the parent to help their child with homework while they’re both on the computer.

So, what does the future have in store for virtual visitation?  Where is all this leading to?  Will courts address other internet issues such as parents “friending” their kids on Facebook?  Will bonds be forged through online gaming? (“What’s your Gamertag, son?”)

Personally I am all for virtual visitation.  In my opinion, more interaction is always better than less.  And bear in mind that for some children whose parents aren’t legally separated (such as those whose parents are overseas), Skype time is how they communicate with their parents.  I’ve been ranting for some time now about how slow courts can be to keep pace with technology.  But in this case, it appears that the judicial system is doing its best to keep uploaded, I mean, updated.

***For parents who are interested in learning more about virtual visitation, there are an abundance of resources available at www.internetvisitation.org.***

The Legal Complexities Of Raising Children

It’s lovely to see that no matter how far we’ve come as a society there will still be people to drag us back to the stone age, or in this case, late 1930s to mid-1940s.

In case you don’t remember the saga of Heath and Deborah Campbell and their three children, back in December the couple made headlines when they enter a grocery store to buy a birthday cake for their son.  They requested to have his name put on the cake, but the employee refused to on the grounds that he thought “Happy Birthday Adolf Hitler” was in bad taste.  That’s right, the Campbells named their son after Adolf Hitler; you know, that Adolf.  And in case you guys think it might be just be a poor coincidence, their other two children are named Aryan Nation and Honszlynn Hinler.

Anyway, the state stepped in a little while back to take custody away.  The action was of course challenged by the couple, but today the New Jersey appeals court confirmed that the Nazi-loving parents would not be getting their children back.

Now before you start getting up in arms over constitutional freedoms, the reason the court took the Campbells’ kids away wasn’t because of the parents’ choice of names or their beliefs, but rather because both Heath and Deborah Campbell are unemployed and have disabilities rendering them unfit to care for children.

It’s easy for this news story to get a person thinking about the legal complexities that come with child-rearing.  It’s odd to think that as recently as the 1900s, the general attitude was that parents could do whatever they wanted with their children and that it was none of the state’s business.  Nowadays we have whole governmental agencies dedicated to ensuring the well-being of children.

But the party that complicates the process of raising children the most, more than any third-parties or government agencies ever could, is the parents themselves.  Case in point: the Campbells.  Honestly, it’s no stretch of the imagination to conclude that the whole reason the state began looking into their wacky household was because of the children’s white supremacist names.  That’s the reason the story became news in the first place.  You don’t see kids named John Smith making the headlines, do you?

But at least the Campbells were in the same crazy boat, as they both seem to support each other and their racist ideology.  By far, the biggest legal obstacles to raising children arise when the parents don’t like each other.  Divorced parents can do some nutty things, like get too much plastic surgery, buy absurdly expensive cars, or date inappropriately younger mates.  Too often have I heard of stories where a divorced couple will not only use their children to hurt the other ex-spouse, but will often even wrongly deny the other party visitation rights.

This latter scenario is particularly unfavorable, as everyone is hurt (even the parent who denies the visitation right), because when a child isn’t allowed to see a parent, the kid’s pain has to hurt the one who create the situation at some level.

Parental visitation rights are such an important area that it deserves some quick legal notes on what can and cannot be done to them.

First, visitation rights carry over from state to state.  Meaning that if a judge in Utah issues an order on how visitation rights should proceed and one parent jumps ship over to California, the Utah judge’s court order still stands and both parents must adhere to it.

Second, if a parent does move to another state, the best course of action to ensure you’ll have an easier time enforcing the original judge’s order is to register that judge’s order with the court of the other parent’s new residence.  Doing so will save you a hell of a lot more time and effort if it ever comes to the point where you need to get that state’s local authorities involved.

If you’re ever denied visitation rights, register a complaint with the police immediately because visitation rights as issued by a judge are considered court orders and not following them is a violation of the court’s authority.  You can then go to the court and get them to issue a contempt of court violation against the other parent.  This can carries penalties such as jail time and fines, and will help deter the disobeying parent from denying your visitation rights again.

Also remember, that the court that originally issued the order retains jurisdiction over the case, meaning you don’t have to travel to the court of your ex’s new state in order to get your court order validated.

So what’s the lesson to all this madness?  Raising children is tough enough, but don’t make it more difficult by giving the government a legal reason to step in.  Remember, think of the children.

Family Court Won’t Stop Non-Custodial Parent from Taking Child to Church

When one parent has custody of a child, and the other has fairly extensive visitation rights, there are bound to be conflicts over how the child should be raised. Sometimes, the child, sadly, can become a bargaining chip that the parents use to try to settle old scores with one another, especially if they didn’t separate on good terms.

Few issues, however, are more personal, emotional, or contentious than religion. After all, wars are fought over religion all the time. It’s not surprising that, on the much smaller scale of family disputes, religion can be a major point of contention, especially when the parents are separated, and cannot agree on what religious faith the child should be raised under. Obviously, many people are extremely passionate about their religious beliefs. For most, it’s much more than a matter of life and death; it’s a matter of eternity.

 

It’s not surprising, then, that stories like this (also blogged about here and here) aren’t exactly unheard of in modern times. Essentially, the custodial mother of a 3-year-old child wanted to raise her daughter to be Jewish, which was her religion. The girl’s father, who had extensive visitation rights, wanted to take the girl to Catholic Church services.

The mother, as one might expect, fervently objected, and even went to a family court to get an injunction against taking the girl to Catholic services.

However, another judge has just vacated (links to full opinion, PDF) that order, finding that the father can take the girl to church while she is in his custody. The court reasoned that it will not interfere with a parent’s religious practices unless the parent who objects to it can show that it is harming the child, or has a reasonable possibility of causing harm. No such showing was made here.

It’s very likely that the girl’s mother views this ruling as an affront, and she certainly has a right to feel that way. It’s absolutely essential to remember, however, that these court decisions really only take one thing into account: the best interests of the child. This policy makes perfect sense – parents must not be allowed to use their children as pawns in a scheme to hurt the other parent. Accordingly, when 2 parents have irreconcilable differences about how a child should be raised, or who should have custody, the court will not consider the issue of which parent will be most offended or upset by an adverse decision.

After all, the parents in these cases are presumed to be mature adults, who know how to deal with hurt feelings, and are capable of recognizing that the world doesn’t revolve around them. A 3-year-old girl, on the other hand, is simply an innocent bystander in a fight between her parents, and emotional harm at that age can have far more profound long-term effects than similar emotional harm occurring at a later age.

And really, if both parents can at least agree that the child should be brought up to be religious (even if they can’t agree on which one), wouldn’t they see it as a good thing for her to be exposed to as many different belief systems as possible at an early age? As an outside observer, that certainly seems like a reasonable position to me, but, not sharing the religious beliefs of either of those parents, I’m sure their thought processes are very different from my own.

The mother argued that there might not be anything inherently “bad” about the girl being raised as a Catholic, but did present expert testimony that competing religious indoctrination would cause confusion, distress, and possibly resentment of one or both of the parents. The court was not persuaded by these claims, mainly because of the burden of proof placed on the mother in this case.

While family law decisions always revolve around the perceived best interests of the child, a court will almost always presume that the best interests of the child are served when outside parties interfere as little as possible, and it therefore interferes as a last resort. So, a court will not restrict what a parent can do during lawful visitation unless a very compelling showing can be made that failure to do so would cause harm to the child. In this case, the mother was unable to meet that burden.

In general, it seems that the court struck the right balance here. This is the type of matter that parents, as intelligent adults, should be able to resolve amongst themselves. After all, when they were married and knew that they were going to have a child, is it possible that 2 people who are deeply committed to their respective religious faiths wouldn’t have had a single discussion about what role each religion would play in their child’s life? That seems extremely unlikely. If they did come to some agreement, or at least a truce, on the matter, couldn’t that have continued after their divorce?

It should be noted that the father doesn’t exactly come out of this smelling of roses, either. When he had his daughter baptized, he called in local news stations, turning the event into a national spectacle, and what some would call a media circus.

I don’t hold it against a couple when they decide to get a divorce. If they’re not happy in their marriage, they aren’t doing themselves, or anyone else, any favors by staying together “just because.” However, if they have chosen to bring a child into the world, they need to realize that the universe does not revolve around them or their problems. It’s a sad state of affairs that a child can be used a tool by one parent to hurt the other.

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When Supervised Child Visitation Is Needed

A non-custodial parent, in all but the most extreme cases, has a right to visit his or her biological children. Usually, a visitation schedule is agreed upon by the parents, and enforced by the family law court. If the parents cannot come to an agreement, a court might impose some type of arrangement upon them, to ensure that the non-custodial parent has at least some access to their children. Generally, the visitation is unsupervised.

However, there are some reasons, very few of them pleasant, why a court might grant visitation on the condition that the visiting parent consent to supervision by a neutral third party.

These reasons include past physical abuse or threats of violence against the child or the other parent, incarceration of the visiting parent (obviously, a prison is no place for an unsupervised child), mental illness of the visiting parent, or a showing of a strong probability that the parent might attempt to abduct the child.

Courts might also order supervised visitation based on the sexual behavior of the visiting parent. While a consensual sexual relationship between the parent and another adult is usually not a problem, if the parent is unmarried and cohabitating with a boyfriend or girlfriend, a court might order supervised visitation if it deems that this would be in the child’s best interests. Courts are split as to whether or not a homosexual relationship on the part of the parent is a bar to unsupervised visitation.

supervised visitationWhile most parents would presumably prefer unsupervised visitation, if the situation warrants supervised visitation, it can have some benefits. For example, in the vast majority of cases, it is generally seen as better for the child, on balance, to have both parents involved in their lives than not. At the same time, if the parent has shown him or herself to be a risk to the child’s safety, completely unsupervised visitation may be unacceptable. In such cases, supervised visitation is the only viable compromise.

Furthermore, if the visiting parent really loves his or her children (and, whatever their past indiscretions, most of them do), supervised visitation could be beneficial. The presence of the supervisor could serve to remind them of why they’re in this situation in the first place, and their children can be an extremely strong incentive to stay on the straight and narrow.

On the other hand, there may be some costs involved. Obviously, somebody has to pay for the presence of a supervisor (they don’t work for free), whether it’s the parents or the taxpayers. Furthermore, it’s possible that only being allowed near one of their parents with a stranger present might confuse the children, necessitating some very uncomfortable conversations. On balance, however, it’s a good thing that supervised visitation is one of many options that parents have.

According to LegalMatch case data from the last several months, only about 10% of non-custodial parents are in supervised visitation arrangements. This is probably a good thing, showing that the majority of parents, whatever their marital problems, are still fit to visit their children and have unfettered access to them during the scheduled visitation period.

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At LegalMatch, we value our client’s opinion and make it a point to address their concerns. You can refer to our reviews page if you want to know what our clients have to say about us.

Child Custody Battles In My Own Backyard

child custody disputeIn my opinion (IMO, to you all people who can’t pry yourself away from the interwebz) a person goes through a number of stages in their life: childhood, adolescence, young adult, middle-aged, then old dude or dudette.  That’s generally how most people see life, too.  But within these stages, there are a bunch of sub-stages that occur, most interestingly between young adult to middle-aged.  I’m in an odd/interesting/sad stage right now.  I’m right around the age where everyone is starting to get married, but also I’m getting closer to the age where I’m starting to know people who are getting divorced.  It’s weird – whatever happened to the stage where we’d all play around in the sandbox and make mudpies?  Oh, childhood, why did we have to leave you?

Anyway… recently, I ran into an old friend, Joey, from high school and we ended up talking about his life since I last saw him.  Joey was a pretty popular kid when we were in school together.  Despite the fact that our school didn’t have very strong sports teams, Joey was a star-player on our school’s basketball team nonetheless, which is why he was also popular among a lot of the female students.  And in our senior year, Joey hooked up with Deborah, a shy, yet nice girl from our school.  Everyone thought they were the cutest couple and that they were headed to good successful places.  So when Joey told me that he was getting divorced, I was shocked.  Even more surprising was when he told me how things between he and Deborah had soured to the point where they were no longer talking and that he was locked in a bitter custody battle with her.

I was shocked, even more shocked than when I discovered the drying power of ShamWow!

Joey wanted to have primary custody of the children.  He told me how other divorced guys he knew all either lost complete custody of their children or were limited only to visitations rights.  Joey didn’t want to keep Deborah from seeing their children.  In fact, he wanted her to be a very active part in their lives.  But what he didn’t want was to become like all the other divorced dads he knew.  He didn’t want to be limited to only visiting his children because he was worried that it’d make his children distant.  He wanted to know what his options were.

Well, I didn’t know what to tell him since anyone in or heading toward a career in lawyering knows that the answer to every legal question is that “it all depends.”  Laws can be ambiguous and outcomes vary all the time and are dependent on a number of things as facts can always be distinguished to appear different from other cases tried before it.

Generally, in California and most states, courts usually award custody to the primary caregiver, meaning the person who spends the most time with the child.  Usually that translates to the person who doesn’t hold paid employment and raises the child, but when both parents work, like in Joey’s case, it comes down to fitness and a calculation of time spent with the child.

Joey isn’t alone in his predicament.  A vast majority of family law cases received by LegalMatch are about child custody battles.

The best advice I could give to my friend was to seek the counsel of a qualified family law lawyer.  Because regardless of the legal situation, case outcomes are not always predictable.