When a married couple legally separates or divorces, they face issues regarding custody and visitation arrangements for their children. The termination of a marital relationship can be extremely stressful and if children are involved, there will be added layers of emotional duress and possible frustration which come into play.

Where both parents typically spent every day and holidays with their children, a separation or divorce can threaten the daily routine the family members were used to. The thought of no longer being able to see their children whenever they choose, or not being able to spend holidays together, such as Thanksgiving, Christmas, or Hanukkah, can be very frightening. It is common for the parents to become bitter, especially when they are trying to agree on child visitation and custody arrangements.

When making a child custody and visitation agreement, one parent will typically be designated as the custodial parent and will have primary custody. Custodial parent is the parent with whom the child will reside and who will manage the day-to-day upbringing and care of the child.

The other parent, or the non-custodial parent, will typically be granted visitation rights. In some arrangements, the parents will have joint physical custody and the child will spend an equal amount of time in both parents’ homes.

In situations where one parent is granted primary custody, the other parent may petition the court with a proposed visitation in order to receive a court order. Visitation schedules are not legally binding with a court order. Family lawyers frequently assist clients with developing a parenting plan which is acceptable to both parties.

In the best situations, the parents will work together and create a plan which they can both agree upon and will then submit that plan to the court for approval. In cases which involve parents who cannot agree and are unwilling to communicate, it is more difficult to create a parenting plan. Without the mutual cooperation of the parents, visitation schedules may be rigid and cause additional animosity.

Any custody and visitation agreement must, first and foremost, represent a child’s best interests. Courts usually prefer the parents to agree on their own plans rather than dividing the child’s time between the parents based on what is presented to the court. In most cases, if the parents agree to a plan and submit it to the court, so long as it is in the best interests of the child, the court will likely approve the plan.

In cases where the parents are unable to come to a mutual decision regarding visitation, the court will consider various factors which will help determine the best interests of the child and will decide based on those factors. A family lawyer can be extremely helpful in these cases because they can help their clients come to an agreement with limited communication between the parents.

An important aspect of child visitation and custody agreements includes parental rights. Unmarried fathers are required to establish paternity or be listed on the birth certificate in order to be granted visitation rights. In the alternative, if the father has custody, the mother has parental rights which extend to being able to have visitation with the child.

What Does the Child’s Best Interest Mean?

The child’s best interest standard is a legal principle which the court will apply to child custody and visitation arrangements. The child is the most important party in these legal proceedings and the court will put their interests ahead of those of the parents. The factors which are of utmost importance include the child’s:

  • Safety;
  • Welfare;
  • Health;
  • Development; and
  • Adjustment.

The court will typically consider the previously listed factors as well as the relationship history of the child and their parents. For example, if a child has not seen their father for years, a court will consider the effect that granting visitation would have on the child as well as what factors contributed to the lack of involvement.

Other factors that a court will examine when determining the child’s best interests include:

  • Evidence of domestic violence or abuse;
  • The mental and physical health of the parents;
  • Alcohol or drug abuse; and
  • The child’s wishes, and whether they are of a mature enough age to make those known.

Child custody and visitation laws vary by state. However, the child’s best interest standard always applies.

What is Virtual Visitation?

In the context of child custody, virtual visitation is the right of a non-custodial parent to communicate with their child by means of electronic technology. Virtual visitation is also called e-visitation or e-access.

Virtual visitation typically refers to the utilization of real-time video or webcams to facilitate visitation. E-visitation may also include other electronic communications, such as:

  • E-mails;
  • Text messages;
  • Instant message; and
  • Telephone conferences.

Virtual visitation is becoming a more acceptable form of visitation. It may be a great option when parents and children are separated by long distances or where a child needs additional support.

Which Illinois Laws Cover Virtual Visitation Rules?

The Illinois laws which cover virtual visitation rules include Sections 607 and 609 of the Illinois Marriage and Dissolution of Marriage Act. This Act defines electronic communication as the time which a parent spends with their child when using communication tools such as the internet, e-mail, or other forms of electronic communication.

Pursuant to the Act, electronic communication between the parent and the child is subject to the following limitations:

  • The court is not permitted to consider the availability or non-availability of electronic communication when determining whether a child may be removed by the custodial parent out of state; and
  • The court itself determines under what circumstances and times the e-visitation is appropriate.

Therefore, the court has discretion regarding when to award virtual visitation rights. This type of visitation will not be awarded if it is not in the child’s best interests. Additionally, virtual visitation is not permitted if the non-custodial parent has a history of abuse or if issues exist regarding the child’s personal privacy.

What Other States Allow Virtual Visitation?

Virtual visitation is not in the law books in every state. In addition to the State of Illinois, e-visitation laws have been enacted in the following states:

  • Florida;
  • North Carolina;
  • Texas;
  • Utah; and
  • Wisconsin.

Because this is a relatively new area of law, it is important to seek the assistance of an attorney to determine if virtual visitation is available and an individual’s state and what the requirements may be.

How do I Obtain Rights to Virtual Visitation?

The first step to obtaining rights to virtual visitation is to ask the court during the child custody hearing if virtual visitation is available. The court will examine all relevant factors and determine whether or not virtual visitation is appropriate. In most cases, any contact between the parent and child is better than none, so it is always a good idea to raise the issue of virtual visitation.

If an existing visitation schedule is already in place, a parent can always petition the court to modify the visitation order to include time for virtual visitation. Virtual visitation rights are not granted automatically, so it is important to take affirmative steps to ensure they can be obtained.

Do I Need a Lawyer?

It is essential to have the assistance of an Illinois child visitation attorney for any virtual visitation and child custody and visitation issues or questions you may have. If you would like assistance with visitation rights in Illinois, it is important to contact an attorney as soon as possible. Your attorney can review your situation and agreement, if one is in place, petition the court for any requested changes in visitation or for virtual visitation, and represent you any time you are required to appear in court.