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Eric Villency

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Virtual Visitation Rights A Looming Legal Question

Posted: 03/ 7/11 03:37 AM ET

It's the mornings that get you. You avert your eyes as you walk past his bedroom door, walking briskly to the kitchen it is the longest walk in the world and the emptiness that fills you makes the apartment feel like a cavernous warehouse bereft of warmth. For parents, the most devastating aspect of divorce is the idea that you can't see your child whenever you please. To wake up and not be able to walk over to your child's room and peer in to check on them is an emotional trauma that really can't be articulated. The cruelty of it is that though you are in the same geographical vicinity you can't see them. See your own children. The unnaturalness of the circumstance wrests your insides and takes your mind through a sickening maze of regret. Since the beginning of humanity's journey up the evolutionary arc parents have felt a longing to be with their children and it is only recently that our technological ingenuity has offered some palliatives.

For those who's duty takes them far from home--be they road warriors stuck courting clients in Singapore or actual warriors serving in Iraq and Afghanistan the magic of seeing their child on a computer screen making funny faces and blowing kisses from half way across the world is a cherished ritual that stirs the soul and warms the heart.

Amidst a sea of digital inter-connectivity, it is the pin-sized webcams perched atop laptops and smart phones that have the greatest ability to influence parent-child interaction. As a divorced dad, the ability to see my son and share a moment is something that helps me cope with the separation. A few shared moments with my boy brightens my day in a way I can't describe. Easing the anxiety of wondering "is he ok?" by letting me have a few virtual hugs and playing some good old fashion peek-a-boo.

I'm one of the lucky ones. A civil divorce means I can hop on the computer and Skype with my son pretty much anytime I want. But what happens when divorced couples aren't able to communicate with each other? When the acrimony prevents smooth and easy co-parenting? Virtual web chats are clearly a form of visitation and among the questions family courts are increasingly being asked to adjudicate are the rights of a parent to see their children via video conferencing.

Prominent matrimonial attorney Marilyn Chinitz points to the case of Baker vs. Baker where a state judge in Suffolk County ordered a mother to make her two children available for Skype online video conferencing with their father as a condition of her move to Florida. The decision marks the first reported New York case in which a judge has ordered a relocating parent to facilitate Skyping--i.e., the use of Skype conferencing software--between her children and her ex-spouse as a condition of her move, according to a Westlaw search.

"The Petitioner, at her own cost and expense, will see to it, prior to re-location, that the Respondent, as well as the children, are provided the appropriate internet access via a Skype device which allows a real time broadcast of communications between the Respondent and his children," Supreme Court Justice Jerry Garguilo wrote in Baker v. Baker, 29610-2007.

Yet the issue of virtual visitation is hardly cut and dried as Chinitz points out there are some murkier undertones to "Skype" visitation. Web cameras offer a portal into an ex-spouses home and therefore have the potential for privacy violation. Chinitz has seen an instance where a father asked his juvenile son to carry the laptop computer around the house on fact-finding missions. Asking his young child (who didn't know any better) to open closets while the father attempted to find clues indicating that another man had moved into the home. He then canvassed the home for any newly purchased expensive items (something that could impact the issue of spousal support).

Even in the absence of such invasive behavior, having an ex-spouse in the room during a virtual visitation (as necessitated when children are too young to work the computer) can be less then ideal.

Chinitz remains a supporter of video conferencing technology and thinks that anything that facilitates interaction between children and separated parents can only be a good thing. According to her, the matter is hardly simple, but as she wryly notes there are no mundane issues in acrimonious divorces. From skating classes to class trips she has seen it all vehemently contested and says the courts will determine virtual visitation rights as they would with any of the litany of custody issues they resolve- at their discretion they will make a ruling that they feel is most appropriate for the family and it's specific circumstances.

And so it goes, technology can bridge distances created by geography and circumstance but it is powerless to influence the outcome of our complex relationships. I can personally attest that while I appreciate the chance to blur the focus of my laptop's camera with smudges from kisses directed at a giggling 4 year old- I know there is no substitute for the real thing.

 

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