Skype, Facebook, Twitter, You Tube, whiteboard, Flickr, e-mail, texting, instant messaging – these are only a few of the ways that people stay in touch via the internet. It seems like the telephone has become old-fashioned and outdated. In long distance parenting relationships, it is easier than ever before to stay involved in the day-to-day activity of the child.

Brian and Kathy are the parents of Larry but they have never been married to each other. Brian lives in the Great Britain but Kathy and Larry moved back to Texas a year ago. Brian visits with Larry weekly using Skype. Since Brian is a math-whiz and Kathy dislikes the math homework, Brian often helps Larry do his math homework using a whiteboard website during his Skype visits. Brian gets to see Larry in person in the summer and on holidays. But, without electronic visitation, his relationship with Larry would be much more tenuous.

Electronic communication gives parents and children a way to creatively structure parenting time when face-to-face meetings will not work. It allows for flexibility in accounting for busy schedules. Using Skype, a long-distance parent can see a child’s condition in real time. Using whiteboard or instant messaging, a parent can help with homework. You Tube, Flickr, and Facebook allow for almost instant exchange of pictures or video of a child’s activities. Teenagers might post frequent short updates as to their activities or feelings via Twitter.

The Texas Legislature saw the value in electronic visitation, endorsing frequent contact between parents and children by telephone, electronic mail, instant messaging, videoconferencing, or webcam as early as 2007. At the time, Texas was only the third state to move to the age of the internet. Texas Family Code provision entitled “Electronic Communication with Child by Conservator” sets out the specifics for electronic visitation. Tex. Fam. Code 153.015. Divorcing parents can agree, or, under this section of the Family Code, courts can order “reasonable periods of electronic communication with the child to supplement the parent’s period of possession.

In determining whether to order an electronic communication schedule, including a schedule for telephone access, courts consider three things:
1. whether electronic communication is in the best interest of the child;
2. whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and
3. any other factor the court considers appropriate.

If the court awards a conservator periods of electronic communication with the child, the parents will be required to provide each other with the children’s e-mail address and other information necessary for electronic access; notify each other within 24 hours when the child’s e-mail address of other information changes; and accommodate electronic visitation with the child at reasonable times with the same privacy, respect, and dignity accorded to all form of access, including physical possession.

Practically, the electronic communication schedule could allow the long-distance parent to communicate with the child via e-mail, then designate a period during which the parent would have access to the child via webcam or Skype. Telephone access schedules are also very common, designating a set time or range of time during which the parent not in possession will be allowed to call the child. It is important to consider the child’s schedule when setting a telephone access or electronic visitation schedule.

"Internet communication fosters a meaningful opportunity for communication between parent and child, when traditional means of access would not," says Michelle May O’Neil, . "But, the law requires the long-distance parent to be given that time without interference or hovering by the other parent."

"I have one case where the father travels on business a great deal and misses out on some of the important parenting time with his daughter," recounts O’Neil. "He visits with her via Skype from almost anywhere, airport, hotel room, even dinner meetings."

A New York judge last week permitted a mother to move from New York to Florida with her children, over the father’s objection, but the judge required the mother to provide, at her expense, the necessary equipment to allow the father to Skype with the children at least 3 days per week. (Debra Baker v. James Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., August 4, 2010.)

While convenient and potentially cost-efficient, it is clear that electronic visitation and/or telephone access are not intended as a substitute for actual physical possession of the child. Telephone access and electronic visitation are instead a means of supplementing physical possession, facilitating the connection between the child and the long-distance parent.
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.