Between enforced lockdowns, school closures, and social distancing, 2020 was a kick in the pants. And as the world struggled to operate under the crushing wave of COVID-19, businesses weren’t the only ones forced to adapt.
New safety mandates presented some unique challenges for divorced families (non-custodial parents, in particular), who were forced to carry out visitation schedules virtually. However, even before a worldwide pandemic threw “e-visitation” into the limelight, Texas courts were already utilizing virtual technologies to solve everyday custody conflicts.
Here’s what you need to know about virtual visitation in Texas, and how Neal Ashmore can help incorporate these technologies into your custody agreement.
Custody and Visitation: The Basics
A discussion of virtual visitation wouldn’t be complete without first understanding custody.
In the legal sphere, “custody” encompasses your rights as a parent to raise and make decisions on behalf of your child. These powers fall under two categories (legal and physical), and, upon divorce, must be divided between parents, who are no longer living under the same roof.
To this end, Texas judges can either give all the rights to one parent (sole custody), or else require them to share (joint custody). Since a child’s best interest is served by having a loving, healthy relationship with both parents, Texas courts tend to favor joint custody, whenever possible.
However, because it’s so difficult to divide a child’s time exactly equal between parents, judges will typically assign one parent as the child’s primary residence, while the other is granted a visitation schedule.
This visitation schedule is critical to upholding a non-custodial parent’s right to have access to their child. However, things like military assignments, international custody, and jobs with frequent travel (to name a few problems), often make it difficult for some parents to maintain a robust schedule. So how does the court help these parents keep their relationship alive, when circumstances beyond their control are keeping them from their child?
This is where virtual visitation comes into play.
Virtual Visitation: Defined
In custody and family law, “virtual visitation” refers to the use of any e-communication technology that helps parent and child connect across long distances.
Back in the 90’s, this essentially just meant the occasional phone call and dial-up powered email. These days, however, the unprecedented rise in electronic communication has expanded virtual visitation to include things like FaceTime, texts, webchats, instant messaging, document sharing, photo sharing, social media, online gaming, and so much more.
Tools like these enable parents to hear about their child’s day, help with a special project, tutor on homework, read bedtime stories, give advice and moral support, and attend special events, even if they cannot be there in person.
Because of the many benefits—as well as the widespread availability of such technology—courts across the country have started using these tools to solve certain custody conundrums. Indeed, legislators across several states have already begun adopting official policies to govern the use of virtual visitation in family law.
It just so happens that Texas is one of them.
Virtual Visitation Laws in Texas
In 2007, the Texas Family Code was updated to include specific references to virtual visitation, becoming the third state to adopt such measures.
These revolutionary changes enable either parent to request that virtual visitation
be included in their parenting plan, though—like with anything else involving a minor—judges aren’t obligated to say yes.
When deciding whether or not to grant such a request, the court will analyze your situation against these three factors:
- Whether the arrangement would be in your child’s best interest;
- Whether both parties have the necessary equipment to facilitate such communication; and,
- Any other factors the court thinks are relevant.
Still, if COVID taught the world anything, it’s that FaceTime is a poor substitute for in person contact. For that reason, virtual visitation is never used to replace traditional visitation in Texas; only enhance it.
Including Virtual Visitation in Your Parenting Plan
Unlike states that haven’t yet adopted virtual visitation policies, Texas has very specific guidelines governing electronic meetups between parent and child. This keeps parents honest, and ensures that all communications are carried out appropriately.
If virtual visitation is included in your parenting plan, both you and your spouse will be required to:
- Provide each other with your child’s email address (or other online contact information);
- Notify the other of any changes to this information within 24 hours;
- Allow your child access to the necessary equipment;
- Schedule meetings at a reasonable time of day;
- Provide an area for your child to have private, uncensored communication with their other parent; and,
- Allow the meeting to carry on for a reasonable amount of time (unless limited by the court).
These stipulations shouldn’t be taken lightly. When included in your parenting plan, they are as enforceable as anything else in your divorce order, and failure to uphold them could put your own custody rights in jeopardy.
Best Interest of the Child
We should emphasize: these decisions are child-driven, not parent-driven. Meaning, just because you want virtual visitation, doesn’t mean you’ll always get it. Instead, careful consideration is given to how the arrangement will affect your child, specifically.
The court is particularly sensitive to instances of family violence. In some states, if there has been abuse, supervised visitation is never allowed to be held virtually. For Texas residents, family violence isn’t necessarily a deal breaker, and the court will assess virtual requests based on the child’s emotional and physical well-being, and whether virtual contact would be in their best interest.
Even then, e-visitation will only be granted, IF:
- Both parents agree to the terms; AND,
- The terms:
- Are printed in your court order in boldfaced, capitalized font; AND,
- They specifically reference any restrictions and visitation stipulations that might exist (such as a protective order or a requirement of supervised visitation).
If both parties don’t agree, then the non-custodial parent is out of luck. Where family violence is concerned, a judge will not force virtual visitation if both parents aren’t completely comfortable.
If you are thinking about incorporating virtual visitation into your custody agreement, talk to your family law attorney about whether this option is right for you.
Virtual Visitation Attorneys in Texas
For a parent, nothing can replace the quality of in person face time with a child. However, sometimes this physical contact isn’t possible, and in these situations, something is certainly better than nothing.
If you have more questions about virtual visitation laws in Texas, and how these tools can be used to supplement your visitation schedule, we want to hear from you. Call Neal Ashmore today at (972) 436-8000, or schedule a consultation online, and together, we can figure out the right situation for your family.