Family law attorneys around the country are talking about a New York visitation decision. Illinois practitioners, however, have a different take on the case.
The couple in question had divorced about 10 years ago. The mother was granted custody of their two children; the father was allowed supervised visitation one afternoon a week. The original court stated that the visitation arrangement would be reviewed if the father was able to complete an alcohol rehabilitation program and prove his sobriety.
The issue of relocation of either parent, however, was not addressed. So, when the mother asked the court for permission to relocate to Florida, the father objected.
When the mother found herself in what the court called “dire financial straits,” she decided to move south to be with her parents and extended family. The father objected, stating that he had been sober, as directed, and had been meeting his financial obligations to his children since he concluded treatment.
The court looked at various factors used to determine the best interests of the children, focusing in particular on the nature of the children’s relationship with their father. Because he had been in treatment, he had not had a continued physical presence in their lives. The court cited cases that did not allow a relocation because the child had “a strong and loving relationship” with the non-custodial parent. The love between this father and his children could not be denied, but …
In the end, the court allowed the mother to relocate. There was one unusual stipulation, though: The mother, at her own expense, would see to it that the father and the children would have access to the Internet and Skype, so they could communicate in real time on a regular basis.
The decision makes no mention of whether the judge was swayed by the existence of Internet communication. The decision has been hailed as a modern solution to an age-old problem, but Illinois families facing divorce and custody issues may want to look at a law that went into effect on January 1, 2010.
The law, Illinois Public Act 96-331, specifically defines visitation as “in-person time spent between a child and the child’s parent.” Further, such time may include “electronic communication under conditions … determined by the court.”
The tricky part is that the law also makes it clear that judges may not consider the availability of electronic communication (such as Skype or any voice-over-Internet technology) in deciding a visitation issue when the custodial parent is moving out of state. So, an Illinois court cannot say, “Well, they can just Skype!” and approve the relocation petition.
The law is designed to keep the courts — and parents — focused on the best interests of the children. But the restriction may have unforeseen ramifications on how parties present their arguments and how parties appeal decisions that doesn’t quite go their way.
Baker v. Baker, 29610-2007, NYLJ 1202464436957, at 1 (Suffolk Cty. Sup., August 4, 2010)
Illinois Public Act 96-331 S.B. 1590