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It's The Law: Virtual Visitation Can Be Ordered By The Court

Q: I am divorced. My company is downsizing and moving our entire operation to North Carolina. I currently see my children and all of their school events and they stay with me every other weekend. Since I will not be able be with my kids on the same schedule after I move, is it possible the court will modify our program?

A: The first thing you should do is discuss your move with your ex-spouse. If you can voluntarily agree on a modified visitation plan, the court will invariable approve the modification. Courts are reluctant to interfere with visitation plans agreed to by the parties, as those plans usually work with minimum problems.

If your ex-spouse is not cooperative, you will need to petition the court to modify visitation. Under recent amendment to Florida Statutes, you will not really modify the visitation, but will propose a parenting plan and a time sharing schedule.

The court will consider the same factors in modification that are considered when adopting an initial parenting plan and time sharing schedule. Best interest of your child or children will be the primary consideration.

The court will likely focus on 2 primary factors. First will be needs of any school age children and the amount of time to be spent traveling to effect a new plan. If the children are old enough and air transport available, you may be able to arrange for the child or children to be with you on weekends and a portion of school breaks. You could also ask for time with your children in Florida, if you could arrange transportation for yourself. The cost of such visitation will be a factor.

The court may also consider expanded time for you with the children in the summer, when you could coordinate one round trip for a longer time with the children. When parents move apart, as a substitute effort to maintain a close and continuing parent-child relationship, courts have frequently sought to replace weekly visitation with extended summer visitation.

The activities in which your child or children are involved will be a factor for consideration. Sports schedules, practices, education or other programs can require frequent attendance. The court may be reluctant to interfere with such activities, particularly if they seem to be beneficial to and enjoyed by your child or children.

If your child or children are of sufficient intelligence, understanding and experience to express a preference, the court can consider their reasonable preference. Children are not generally considered sufficiently mature for consideration of their preference until they are approximately 13 years of age, although this can vary.

As additional and supplemental “visitation,” the court may also order electronic communication between a parent and a child. Florida has recognized the ability of a court to order electronic communication under its statutes. In 2007, the Legislative adopted Section 61.13003 of Florida Statutes, specifically addressing court ordered electronic communication between a parent and child.

The statute makes it clear that the court may order electronic communication between a parent and child and that such communication is intended to supplement face to face meetings and not to replace them. Before ordering electronic communication, the court must consider the following factors:

1. Whether electronic communication is in a child’s best interest;
2. Whether communication equipment and technology are reasonably available;
3. Each parent’s history of substance abuse or domestic violence; and
4. Any other factor that the court considers material.

It is presumed that telephonic communication is in the best interest of the child, unless it is established that such communication is harmful. The court may set safeguards or guidelines for electronic communication.

If the court finds that one or both parents will incur additional costs to implement electronic communication, the court must allocate the expense between the parents after considering their respective financial circumstances. That means the wealthier parent may have to pay for such items as computer, webcam and internet service for both ends.

The statute does not apply to any judgment or order issued before October 1, 2007. It can still be persuasive. Moreover, there has never been a statute prohibiting court ordered electronic communication. That means the court’s equitable powers likely authorized it to order electronic communication even before the statute was adopted.

Visitation and other child issues related to divorce are complex. The emotions involved make these matters even more difficult. I recommend you retain an experienced attorney to review the facts of your case and plan an appropriate course of action. Good counsel will help you negotiate the dual minefields of law and emotion.

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