In Illinois, a non-custodial parent is entitled to reasonable visitation with his or her child absent some compelling demonstration that visitation would endanger the child’s physical, mental or emotional well being. Historically, visitation has been limited to face-to-face or telephone contact between a parent and child. With technological advancements, however, visitation has evolved to include what is known as “virtual visitation,” the use of electronic mail, instant messaging, video conferencing and other wireless technology.
In 2010, the Illinois Marriage and Dissolution of Marriage Act was amended to expand visitation from “in-person time spent between a child and the child’s parent,” to include, under appropriate circumstances, “electronic communication under conditions and at times determined by the court.” 750 ILCS 5/607(a)(1). Electronic communication is defined 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”.
The primary reason for the use of electronic communication is to increase the frequency of contact between the child and the non-custodial parent in order to strengthen the bond between them and to enhance the parent’s involvement in the child’s life. This recognizes the importance of both parents taking an active role in their child(ren)’s lives, since many studies indicate that children of divorced parents suffer when both parties do not remain present. Electronic communication can facilitate that on-going presence at minimal costs. As 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.
Still, there are questions unanswered by the Illinois statute: What efforts must the custodial parent make to implement and facilitate the electronic communication? 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 do not have the financial means to facilitate the electronic communication. Will courts mandate custodial parents to take their children to public facilities such as libraries and cafes to facilitate this process further?
There is also the question of what a court will consider as “appropriate circumstances” in which to implement visitation through electronic communication. Will electronic communication apply only to situations in which the non-custodial parent is located out of state or will it apply to all non-custodial parents regardless of how frequently they are seeing their children? Common sense dictates 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 specific times and dates, or should it be more open ended and allow for the child and non-custodial parent to determine when, the communication should take place?