When Michael Gough's ex-wife moved from Utah to Wisconsin with their 4-year-old daughter Saige, Gough asked the judge for a special concession in the custody agreement: virtual visitation rights -- permission to contact Saige electronically when a face-to-face meeting was not possible.
The judged scoffed, but Gough didn't give up hope of having regular contact with his daughter. Instead he found instances where other judges prescribed electronic communication and compiled a package of evidence. He demonstrated how such an arrangement would work and convinced the judge it would benefit his daughter. Gough won the right to contact Saige electronically if he couldn't see her in person. Now he is championing legislation nationwide and in Canada to help noncustodial parents maintain long-distance relationships with their children.
"We can't have our kids every day," Gough said. "This is one tool that will help mitigate that issue. If you talk to those of us who have been involved in move-aways, our children run up to us and greet us after we start doing video calls. They didn't before. Before, you had to learn your kid all over again and they had to learn you."
So far, Utah and Wisconsin have laws allowing judges to order virtual visitation. Twelve states have confirmed predraft bills, according to InternetVisitation.org
, the Web site Gough developed.
The laws aren't written to force the issue onto judges, but to educate both attorneys and judges about visitation options created by advances in video teleconferencing technology, Gough said. "Think about how divorce works: You're somewhat traumatized, you go to your legal counsel, attorney or whatever and say, 'What are my options?' Unless the attorney knows, you're not going to hear that virtual visitation is an option because they are, unfortunately, very computer illiterate."
The same goes for judges, and that's why Rep. Ruth Munson, R-Elgin, sponsored a bill in Illinois that gives judges the option to grant virtual visitation. "They don't even know it exists as a possibility," Munson said of the judges. "This is another tool in their tool belt when they're deciding what's in the best interest of the child. There's nothing now that prohibits them from providing this as an option; there's also nothing now that says you should consider it, either."
Munson said she was approached by a constituent whose ex-wife had custody of their son and moved out of state. The noncustodial father and his son wanted to use a Webcam to communicate -- specifically the son wanted to show off his prom date to his father -- but the mother wouldn't allow it.
"I started exploring a bit about the use of Webcams in virtual visitation as part of tools a judge could use, when appropriate, to help families stay connected," Munson said, adding that although her family is intact, they use Webcams for birthdays and other occasions when she is away. Once, Munson's husband contacted her via Webcam to get her approval on new dresses her daughter purchased. "But most important," she said, "young people use it all the time to communicate with their friends. It's the tool they use."
Virtual visitation tools can be anything that works over the Internet or any other communication medium, including cell phones, Wi-Fi or WiMAX. "It's pretty technology independent," Gough said.
The average age of the technology-savvy person is 37, Gough said, and since most lawyers and judges are over 40, there's a gap between those who use the technology frequently and those who litigate divorce cases. Therefore, it puts the burden on the divorce petitioner to request electronic communication as part of custody.
In some states, Gough said, if it isn't law, it's off the table and the judge won't consider it. "If it isn't law, case law, or statute, 'Don't ask for it, I'm not ordering it,' is the kind of mantra that a lot of judges take because they're not geared toward ruling on cutting-edge divorce law."
In helping lawmakers introduce legislation to permit virtual visitation, Gough is paving the way for others who could benefit from the practice. "It becomes more prevalent as the laws happen because it educates the attorneys that this is an option to consider for their clients," he said.
A computer security consultant for a Fortune 500 company, Gough was well equipped to demonstrate the viability of virtual visitation to the court. "I got a lot of documentation where other judges were ordering it as part of a divorce," he said. "I even followed it up with a demonstration in court at my divorce trial in September 2003. The judge wasn't familiar with the technology, how easy it was to use and how well it worked. When he saw the demonstrations, the legal documents and background of other cases, I think that was a major reason why he ended up ordering it."
Divorce cases aren't always as contentious as Gough's, and some couples agree on virtual visitation without court orders. "For the most part, people are using it," Gough said. "If you talk to judges or attorneys, they'll tell you they have clients ordering this all the time now."
That raises questions about whether virtual visits could replace face-to-face contact altogether. "We're talking about real kids with real parents; virtual is not real," said David Levy, director of the Children's Right's Council in Washington, D.C. "You can't hug your child, take your child to the doctor, walk with your child, hold your child's hand; you can't do those things virtually. We also don't want virtual to justify move-aways."
Levy said even with a court order, once a parent moves out of state with a child, there's nothing to prevent him or her from halting contact. "Long-distance promises can easily be broken; it's very hard to enforce long distance. Say the court allows mom to move from New York to California on the promise that she'll allow virtual access to the child -- what if mom changes her mind, gets angry and says, 'No, I'm cutting you off'? What's dad in New York going to do? He's stuck."
There are other concerns, such as cases involving domestic abuse where the use of electronic communication may give the abusive ex-spouse the ability to invade the privacy of his or her former spouse.
Judy Kasten Bell, executive director of the Utah Domestic Violence Council, expressed mixed feelings about virtual visitation. "If both parents and the child or children all agree that this is a good way to have visitation because the noncustodial parent lives many miles away or it's not feasible for them to get together on a regular basis, it's probably a good alternative," she said.
But before ordering virtual visitation, judges must carefully consider prior abuse or domestic violence if the technology could reveal the location or invade the privacy of the custodial parent, she added. "If the custodial parent has concerns about location, virtual visitation may inadvertently show location." Furthermore, Kasten Bell expressed concerns about whether the noncustodial parent could gain access to location information by installing spyware.
Munson also is worried about the custodial parent's privacy, and her legislation would allow judges to have discretion when granting virtual visitation.
"Would a parent who is not to have any contact with or know where the child lives be able to track the child down if they knew the Internet address?" She said. "Those are difficult questions and ones that have to be taken into consideration."
Gough said privacy fears are unfounded. "There is no possible way to use a Webcam to spy on someone even if they know they have a Webcam or what applications they use," he said. "Most, if not all software -- and I know because I've tested them -- give you the option to 'never auto-answer' a call and 'do not do this by default.' A Webcam adds absolutely zero risk to the whole pedophile and predator issue or domestic violence issue."
Gough said it is the responsibility of the parent to protect a child in any situation. In the case of the Internet, tools are readily available to control access. "This is easy by blacklisting or blocking all sites you do not want a child to see, like chat rooms," he said. "The software is included in all Internet security suites for around $50. It's cheap, easy and effective."
Gough added that parents also can deploy monitoring solutions that supervise all Internet activities, such as instant messages, Web sites visited, e-mail -- and send e-mail alerts to the parent at work, if necessary. The solutions cost around $100. "Limiting technology only harms the child as it is an integral part of today's society and needed as they grow up," Gough said, adding that Webcams can be put to good use. "Talking with a parent obviously is the best use and avoiding misuse is ridiculously easy."
Munson said her legislation would not allow judges to grant virtual visitation in lieu of face-to-face contact. "That's indeed what we're trying to prevent," she said. "We have an amendment to the legislation that you don't see online, and in the amendment we have indicated that the court may not use the availability of electronic communication as a factor in the support of removal of the child," she added, explaining that technology could not replace face-to-face contact and therefore could not justify a custodial parent's decision to relocate. "There has to be some restriction in the custodial situation and judges need to have the last word."
Gough said most states already have relocation guidelines for custodial parents. Usually judges require custodial parents to notify the court and the noncustodial parent 30 or 60 days prior to an expected move. The noncustodial parent can allow the move or force the custodial parent to justify the move.
"You have to prove that it's not going to be detrimental to the child," Gough said, adding that the availability of virtual visitation would not, on its own, be enough to warrant such a determination. "To think that it's the primary reason to allow a move-away is naive and ignorant about how the process works," he said.
Gough said that in Wisconsin, and every other state in which he has helped with the legislation, there is specific wording in the law that says the judge can't consider the existence of electronic communication to justify a move by the custodial parent.
Levy said the best-case scenario is for the judge to prevent the custodial parent from moving -- period. "Some states have laws in practice that work against move-aways, and half the states don't care," he said. "Child support is enforced in this country, but emotional support is ignored, especially long distance."
Levy acknowledged too that there are situations where virtual visitation is appropriate. "We have a very balanced view," he said. "We can't fight technology. The advances are here to stay and we support them in an ancillary manner; as an adjunct to raising a child -- the child's gone camping, has gone for a visit or something temporary across the country. Or if the [custodial parent] and the child have already moved and it can't be stopped then it's a way to keep in touch."