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Child Custody | Divorce

Virtual Visitation in Child Custody

7 min read
Hazel Caldwell, Attorney

by Hazel Caldwell, Attorney

In this digital post-pandemic world, you may wonder about introducing virtual visitation into your parenting agreement. Electronic communication offers a way for the noncustodial parent to keep connected after a divorce, when families are at a long distance, or when one parent is traveling. 

This article addresses concerns about remote visitation, your legal rights to privacy during virtual sessions, and provides a template with sample language for virtual visitation. A family lawyer can help you put your decisions into practice during a divorce or custody negotiation, providing limited or full representation.

What is Virtual Visitation?

Virtual visitation is remote visitation with your child over electronic or digital means, now offered as a complement or alternative to traditional in-person visitation. Although relatively new, this method has increased in popularity due to technological advancement and its successful trials during COVID-19.

Virtual visitation can take many forms. Examples include phone calls, messaging services, and videoconferencing software. Parents have even successfully used social media applications to conduct visitation or enjoyed playing games online with their child as a type of virtual visitation.

The important factor for considering virtual visitation is whether you are able to have a meaningful exchange with your child despite being in physically different spaces.

Legal Requirements for Virtual Visitation

Very few states have passed laws regarding virtual visitation, mostly during the coronavirus pandemic. In most circumstances, the only legal requirement is that the virtual visitation be in the “best interest of the child.”

As virtual visitation is a new area in family law, you are able to make suggestions to the court or to the other parent regarding how virtual visitation serves the best interests of your family’s specific situation. In doing so, you should consider the technology available to your family, and the age, attention span, and digital know-how of your child. 

In drafting the document, you should consider the privacy of the other parent and the timing of the sessions. The privacy of the other parent can be protected by having a unique email or social media account for the child, so that the parent’s information is not used. Like in a normal visitation agreement, the timing of the virtual session should include considerations of the length of the meeting, as well as the frequency.

What to Do During Virtual Visitation Sessions

You are encouraged to be creative with your virtual visitation session to have a meaningful and memorable experience with your child. A conversation about the child’s day or assistance with homework are some of the easiest ways to ease into a virtual visitation session and will help strengthen your bond.

If appropriate, you can also use the opportunity to teach your child a new skill like cooking; play an online game; or engage in creative activities (e.g. drawing together on a whiteboard, singing with each other, or writing poetry).

Your virtual visitation call can also bring you to activities that you could physically attend, such as recitals or award ceremonies.

Privacy Rights and Monitoring in Virtual Visitation

The general rule is that the virtual visitation should be a complement or alternative to your normal parenting plan. This means that privacy arrangements should be similar to your typical custody circumstances.

Therefore, if you normally have unmonitored visits with your child, then yes: you likely have a right to privacy during your virtual visit. In practice, you may need the assistance of the other parent or an older sibling to assist with troubleshooting if there is a technological issue.

In the specific situations where a physical visit would be monitored by court personnel or social worker (such as in cases of an incarcerated parent, a foster home placement, or if there is an order of protection), your virtual visit may likewise require monitoring. This would mean that a third party attends the videoconference or call with you, and has the right to intervene if they determine that inappropriate or abusive behavior is occurring. This person may also interfere to protect the person who is under an order of protection, such as by changing the background of the video call to hide the home where the call is taking place.

Sample Virtual Visitation Agreement Template

The parents have agreed that virtual visitation is in the best interest of [child name] as a [complement/alternative] to in-person visitation. 

[Parent name] will meet with [child name] on [day(s)] from [time] to [time] via _____________________ (TBD or be specific: Zoom, Skype, WhatsApp, Instagram, facebook, etc). [Parent name] represents that to the best of her/his knowledge, the child’s current digital contact information is ___________________ and agrees to provide updated contact information if this changes. 

The parents agree and understand that the rights of privacy are important and both will ensure [child] and [parent] are able to meet in a quiet environment. [Parent] agrees to be prepared for the virtual session and to conduct herself/himself in the same manner as if she/he was meeting with the child in-person.

[If the virtual visitation is meant as a complementary visit: This agreement is not meant to supersede or displace the rights of [parent] to have in-person visitation under the previous agreement, but is meant only to extend additional parenting opportunities.]

Objecting to Virtual Visitation

You can refuse to accept virtual visitation as part of an agreement if you feel it is not in the best interest of the child. You will need to provide an explanation of why the virtual visitation will not work in your family’s specific situation. For example, you may have concerns about technology, digital safety, or the child’s attention span. Because some of these concerns can be mitigated, especially with the presence of a court-ordered third party, you should be prepared for a legal argument and you may want to consider consulting with an attorney beforehand.

Are Virtual Visitation Schedules the Same as In-Person Visitation?

In most cases, no. Generally, virtual visitation is meant to allow additional opportunities for the non-custodial parent to visit with the child when physical access is impossible. 

There are also some cases where virtual visitation is added into a daily routine to allow additional parenting opportunities for the non-custodial parent, such as a 15-minute call to say good night before bedtime each day. You can negotiate the schedules with your co-parent, always keeping in mind what is in the best interest of the child.

Differences Between Limited and Full-time Virtual Visitation

Limited virtual visitation is generally agreed to for a specific and temporary situation, such as a trip. In contrast, a full-time virtual visitation means the co-parent is generally not able to visit in-person with the child.

In a limited virtual visitation, you may make more informal agreements with the co-parent so that you are able to still participate in your child’s life despite being temporarily distant.

A full-time virtual visitation should have more structure and formal agreements regarding scheduling. This situation is possible when the co-parent is away for long periods of time, such as in the case of military service members, instances of incarceration, or when the co-parent has moved away.

Refining Your Virtual Visitation Agreement

Before suggesting or responding to a request for virtual visitation, you should first determine the law of your specific state. Some states have provided guidance regarding how a virtual visitation can be conducted.

You may also benefit from reading about the experiences of states such as Florida, in which researchers reflected on their experiences in monitoring virtual visitations. The directors of Florida’s  child services agency that were monitoring virtual visitations found that children aged 0 to 3 were only able to stay focused on the screen for 15 minutes. Regarding abilities, Florida found that children with visual or hearing differences had special needs for accommodations. If your child is active and uninterested in screen time, you may need to suggest creative alternatives, such as going on a walk and talking at the same time.

Lastly, you should note that nothing replaces the warmth of a hug or the love in a kiss. Digital communication is not a substitute for in-person time with your loved one, but it can help you to keep up your connection in specific circumstances.

An unbundled lawyer can help you implement a virtual visitation agreement in a cost-effective way.

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