|August 24, 2010|
In Illinois, as in most states, a non-custodial parent is entitled to reasonable visitation with his or her child absent some compelling evidence showing that visitation would endanger that child’s physical, mental or emotional well being. Historically, visitation has been face-to-face or telephone contact between parent and child at agreed upon times. However, with technology constantly advancing in our society, the form that visitation takes has evolved to include what is being now being referred to as “virtual visitation,” the use of electronic mail, instant messaging, video conferencing and other wireless technology to allow non-custodial parents to maintain more frequent contact with their children.
In 2010, the Illinois Marriage and Dissolution of Marriage Act was amended so that visitation included not only “in-person time spent between a child and the child’s parent,” but “[i]n appropriate circumstances, it may include electronic communication under conditions and at times determined by the court.” 750 ILCS 5/607(a)(1). The revised Illinois statute defines electronic communication as time spent between a parent and a child outside of that child’s physical presence which is facilitated through communication media such as cellular telephones, electronic mail, instant messaging, video conferencing, or other wired or wireless technologies via the internet. or the catch-all, “another medium of communication”. 750 ILCS 5/607(a)(2). The Illinois statute is a newly implemented mechanism that mirrors the enactment of similar laws in other states allowing for electronic communication between a non-custodial parent and child.
Frequency of Contact
The primary reason for the increased use of electronic communication as a means for a non-custodial parent to have additional time with the child is to increase the frequency of contact between the child and parent in order to strengthen the bond between them and to enhance the parent’s involvement in the child’s life. This goal recognizes the importance of both parents taking an active and involved role in their children’s lives, since many studies indicate that children of divorced parents suffer emotionally, financially, and socially when both parties do not remain a constant presence in their lives. Electronic communication offered under the Illinois statute through the use of email and video conferencing can facilitate that communication on a relatively frequent basis at a cost that is fairly inexpensive. For example, so long as both parents have computers, visitation through electronic means can be accomplished through the acquisition of items such as a webcam, microphone and the appropriate computer software programs. Thus, easy accessibility to electronic communication in today’s computer age is fairly widespread. Further, this alternative means of communication allows for more a intimate mode of communication than simply speaking over the telephone since a child and parent can physically see one another.
Many states have addressed, utilized or considered electronic communication as a means for determining relocation cases, in which a parent is attempting to move with a child to another state. States differ in their attitude toward this newly available means of communication and whether it should be considered as a factor in deciding whether to permit the interstate relocation of a parent and child. Illinois’ position on this issue is that a court may not use the availability of electronic communication as a factor in support of a request for removal of a child by a custodial parent. 750 ILCS 5/609(c). The message sent by the Illinois statute is consistent with what many critics point out about electronic communication as a means for visitation—it is not a substitute for physical contact between a parent and child. Although some level of contact or communication between a non-custodial parent and child is better than none at all, electronic communication is simply never going to be an adequate replacement for the benefit of direct human contact. Therefore, the Illinois statute allows electronic communication to be used as a vehicle through which parent-child contact is supplemented but not replaced.
Questions Raised in Illinois
Still, there are questions raised but unanswered by the Illinois statute: What efforts must the custodial parent make to implement and facilitate the electronic communication? What will be each parent’s role in the process? Who will be responsible for the costs associated with the establishment and maintenance of the electronic communication? How often and for how much time is such communication to take place? Courts still must wrestle with the issue of what to do in situations where parties cannot afford computers or simply do not have the financial means to facilitate the electronic communication whether through cell phones or computers or other wireless technologies. Will courts mandate that custodial parents have to take their children to public facilities such as libraries and cafes to facilitate this process further? Courts still must determine what to do with parents who aren’t comfortable with and lack the skills necessary to implement an effective means of visitation through electronic communication.
Other questions that remain unanswered in Illinois is what will a court consider as “appropriate circumstances” in which to implement visitation through electronic communication, and under what conditions and at what times will the communication will be ordered? Will electronic communication apply only to situations in which the non-custodial parent is physically with the children every other weekend and perhaps one night per week for dinner, or will it apply to all non-custodial parents irrespective of how frequently they are seeing their children during the week? Further, does it apply to only those parents who live significant distances from one another, or is it to be applicable in situations in which divorced parents still reside fairly close together? Common sense would say that the more frequent the physical contact between a non-custodial parent and a child, the less likely it will be that a court will order electronic communication. Further, if a court does order such communication, should it be at a set time and be structured just as regular physical contact is with structured, specific times and dates, or should it be more open ended and allow for the child and non-custodial parent to determine when, in age appropriate circumstances, the communication should take place?
Given the newness of the statute and of the evolving and developing concept of electronic visitation, only time will tell how it plays out. However, Illinois has taken a step in the right direction to try to enhance the role of the non-custodial parent. Now it is up to the courts to define the scope of when, where and how often that electronic communication should occur.
This article was first published in the July 2010 issue of The Matrimonial Strategist.