Academic journal article Rutgers Computer & Technology Law Journal

Virtually Possible - Using the Internet to Facilitate Custody and Parenting beyond Relocation

Academic journal article Rutgers Computer & Technology Law Journal

Virtually Possible - Using the Internet to Facilitate Custody and Parenting beyond Relocation

Article excerpt

Child custody problems in divorce judgments are an unfortunately common issue in American society. In 2009 there were 6.8 million marriages and 3.4 million divorces. (1) This equates to a divorce rate of 50%. (2) The destruction of a family unit in divorce, and the subsequent resolution of custody issues afterward, have profound effects on the children of a dissolved marriage. (3) The courts and state legislatures have recognized the need of children to continue relationships with and have support from both parents following a final judgment of divorce (4) and have created numerous support systems and shared parenting arrangements to serve this need. (5)

The judicial system has adopted the mechanisms to support the interests of children, such as the abandonment of the tender years doctrine (6) and stricter enforcement of child support obligations. (7) A recent addition to child custody resolution is virtual visitation. (8) "Virtual visitation, also called Internet visitation, refers to the use of e-mail, instant messaging, webcams, and other Internet tools to provide regular contact between a noncustodial parent and his or her child." (9) The tools available today via the Internet can maximize the welfare of children by substantially increasing the ability of parents to exercise both their custodial and legal rights. (10)

Part I of this note begins with a brief explanation of child custody arrangements and issues in America and a brief review of social science literature to show why such modernization is beneficial. Next, Part II will review court decisions and legislative acts that states have used to facilitate custody arrangement and parenting with Internet tools. Finally, Part III will suggest new uses for existing remedies and suggest new applications that courts or legislatures could add to a judicial "toolbox" in order to maximize the interests of children and their parents.


A. Typical Custody Arrangements

There are two types of custody a parent can be awarded. One is legal custody, which encompasses a parent's right to make major decisions for a child, to legally advocate for the child, (11) and to otherwise have the privileges afforded to parents by law. (12)

The second type of custody, and the more relevant one for the purposes of this note, is residential custody. A parent with residential custody is the primary caretaker of and provides the primary residence for the child. (13)

There are several ways a court assigns custody. One method is to assign joint primary residential and legal custody. This situation can occur in two ways: the unlikely situation where the former spouses continue to cohabitate in the same household, or the more likely scenario where both parents reside near each other and have equal amounts of parenting time. (14) A more common custody arrangement is where one parent has residential and legal custody while the other parent has legal custody and visitation rights. (15) Although, the current vogue is to refer to the parent with visitation rights as possessing secondary residential custody of the child. (16) This scenario is favored because traditional family law doctrine presumes that it is in the best interests of the child to have regular contact with both parents. (17) Finally, one last common custody arrangement is sole custody, where one parent has full residential and legal custody of a minor child. (18) This custody arrangement is most often used in cases where one parent is either unwilling or unfit to care for their child or where there is such animosity between the parents that the child would be adversely affected by those parents having any contact with each other. (19)

The custody plan used in any divorce is intensely fact specific. (20) The judicial determination is guided, in virtually all states, by applying the underlying circumstances surrounding both parents to an assessment of what custody arrangement is in the best interest of the child based on those facts. …

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