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Perhaps it was inevitable that the Internet — with its capacity for two-way audiovisual communication — would be proposed as an occasional substitute for in-person child visitation in divorce cases. A New Jersey state appeals court, though stopping short of endorsing the concept, has directed a Family Part judge to reconsider his rejection of a proposal that a Webcam be used, at times, to allow for visitation over long distances. The Jan. 5 decision in McCoy v. McCoy, A-6868-98T3, reversed a Bergen County, N.J., judge’s denial of a custodial parent’s request for permission to relocate to California with her 9-year-old daughter. The three-judge panel found that Superior Court Judge Edward Torack treated the suggested use of the Internet dismissively and “never focused on the actual alternate visitation schedule proposed by plaintiff and whether it was comparable to defendant’s current schedule or inimical to the best interest” of the child. Judge Jack Lintner, who was joined by Judges David Baime and Philip Carchman, called the idea of Webcam visitation “both creative and innovative.” The appeals court required on remand “further proof concerning alternate visitation schedules” accompanied by “findings of fact, after weighing all the proposed evidence, as to whether the proposed move is inimical to the best interest” of the child. Sally Goldfarb, who teaches family law at Rutgers Law School-Camden, says she is not aware of any precedent for court-ordered Internet visitation but sees it as “a logical next step” in “a trend that began decades ago with visitation orders that included provisions for scheduled telephone calls between children and noncustodial parents.” “With the growing mobility of society, it is only natural that litigants and courts will increasingly be looking to technology to try to maintain ties between children and noncustodial parents,” says Goldfarb. Matrimonial attorney Gary Skoloff says, “Technology has seriously moved into custody” disputes and now, with McCoy, “the door to Internet visitation is more open than ever.” FILLING THE GAPS Kyron Henn-Lee, of Mahwah, N.J., sought permission in 1998 to relocate from New Jersey to California with her daughter, Katherine, for a job with equivalent pay plus health insurance and better hours. She proposed an alternate visitation schedule that would give her former husband, Thomas McCoy of Elmwood Park, N.J., the same total visitation that he already had. However, the 66 days a year would be broken into widely separated blocs of time, with gaps of several months between visits. To help fill the gaps, Henn-Lee, a freelance Web designer, “proposed building a Web site, which would include the use of camera-computer technology to give defendant, his family and friends the ability to communicate directly with Katherine on a daily basis and review her school work and records,” according to the appeals panel. This would afford McCoy “daily face-to-face communication with Katherine, albeit through an electronic medium.” In his April 19, 1999, bench ruling, Torack found that Henn-Lee’s proposal was “not a substitute for in-person, weekly visits, parenting time during which you are actually in the presence of the child.” He also questioned the reliability of the technology, which “may not be so fully developed as to provide that the communication is available at will. There may be some breakdowns. Someone else may be online.” Henn-Lee’s attorney, John D’Anton, a sole practitioner in Ridgefield, N.J., says almost two years have passed since his client made her suggestion, and the passage of time has only reduced any technological drawbacks to Internet visitation. “The technology is really moving quickly here,” he says. In addition to providing real-time contact, the proposal allows video messages to be sent for later viewing, D’Anton says. But to McCoy’s lawyer, William Roca, the issue is not the technology but the loss of regular personal contact that would result from the move. “The Internet is not an acceptable alternative.” During Katherine’s visit with McCoy last weekend, they cooked dinner, played the piano and made a snowman, Roca says. “Not a week has gone by in her life that he hasn’t seen her,” he adds. “There is also a certain comfort in knowing that your child is not far away” in the event of injury or illness, says Roca. Removing Katherine from New Jersey would also separate her from her grandparents, says Roca. Without extended family members to baby-sit for Katherine, Henn-Lee’s move to California also would raise child-care costs, which would be especially significant for Katherine, who is hemiplegic, wears a brace on her right leg and has restricted use of one arm and hand, says Roca. The court below also relied on a neurological report stating that Katherine, who is hyperactive, is subject to seizures and compulsive and has difficulty dealing with changes in her environment. For D’Anton, Katherine’s limitations cut the other way on Internet visitation. Though he says the child’s “aptitude is within normal limits,” she lags in development of some of her skills. “Visual communication is surest and easiest for her,” says D’Anton, and contact by Webcam would help develop her communication skills “The Internet is not the answer; it’s sort of a glorified phone call,” says Roca, an associate in the law office of Nicholas Matera of Paterson, N.J. Skoloff, a partner in the Livingston, N.J., firm of Skoloff & Wolfe, disagrees, saying Internet contact is not only less expensive but also allows parent and child to see each other in contrast to the telephone. Given that “the clear trend at the present time is toward a rule that allows greater freedom to relocate by the parent with primary custody,” technology “that will allow continuation of contact” is increasingly important, says Skoloff. University of Minnesota Law School professor Robert Levy, who co-authored a book with Skoloff on child custody law, says, “Unless you are going to say that the parent is not entitled to relocate, one parent is going to have to do without the possibility of everyday physical contact with the child.” Cybervisitation is “not the same as holding the child in your lap,” says Levy. “But faced with the reality that someone is going to be without the child on a daily or weekly basis, this is going a great distance by the custodial mother to try to maximize the opportunities.” Elliot Gourvitz, a Springfield, N.J., matrimonial attorney and former president of the state chapter of the American Academy of Matrimonial Lawyers, who is also unaware of any court-ordered Internet visitation, says “the Internet makes no difference” and “certainly doesn’t substitute for personal contact.” Even if the child is not physically active, even “the simple act of just sitting next to each other watching TV” can’t be replaced over the Internet. “You can’t hug your computer in the morning,” says Gourvitz. Torack also found that Henn-Lee failed to meet the first prong of the two-part analysis applied by the New Jersey Supreme Court in Holder v. Polanski, 111 N.J. 344 (1988), which requires that the custodial parent have a good-faith reason for the move. The second prong requires “a determination of whether the move is inimical to the best interest of the child.” The appellate ruling reversed the finding that Henn-Lee failed to show a good-faith reason for relocating as “not born[e] out by the record,” and as based on the trial court’s confusion of the two prongs. The panel determined that Henn-Lee “did establish a good faith reason for her move.” D’Anton and Roca will meet with Torack on Jan. 26 for a case management conference.

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