Video Visitation and Other Electronica

Posted on December 5, 2007 by Jimmy Verner

The Texas legislature has gone high-tech, at least in the variety of ways Texas law now permits a conservator to keep in touch with his or her children.  In new Texas Family Code section 153.015 - entitled "Electronic Communication with Child by Conservator" - the legislature has endorsed frequent contract by "telephone, electronic mail, instant messaging, videoconferencing, or webcam."

But the legislature also made clear that electronic visitation is intended to supplement periods of physical possession, not replace it.  The new statute specifically states that electronic communication "is not intended as a substitute for physical possession."  Further, the availability of electronic communication cannot be considered by a court as a factor in setting child support.

What are the requirements for electronic visitation?  There are three:

  1. Each parent must provide the other parent with the child's email address plus any other information needed for electronic visitation.
  2. Each parent must notify the other parent of any changes in email addresses or other information not later than twenty-four hours after the change takes effect.
  3. If "necessary equipment is reasonably available," each parent must permit electronic visitation at reasonable times "with the same privacy, respect, and dignity" as physical possession.
According to long-time family law Prof. John J. ("Jack") Sampson of the University of Texas, the legislature decided to add this section after "hearing stories of parents not allowing children to speak to the other parent during periods of possession."  While they were at it, the legislators decided to include email, instant messaging and video.

Section 153.015 appears after the break.

Continue Reading...
Tags: , , , , ,

A Close Reading of the Extended Possession Statute

Posted on October 9, 2007 by Jimmy Verner

Texas' Standard Possession Order sets out when the noncustodial parent has visitation with ("possession of") the children.  By default, the noncustodial parent has visitation with the children on Thursday evenings during the school term between 6:00 p.m. and 8:00 p.m., and on the first, third and (if there is one) fifth weekends throughout the year from 6:00 p.m. Friday to 6:00 p.m. Sunday.

But a noncustodial parent may request alternative times for visitation to occur on Thursdays and on weekends.  According to Texas Family Code section 153.312(a), the noncustodial parent may elect that weekend visitation begin when the child's school is dismissed on Friday.  The noncustodial parent may elect - unless not in the child's best interest - that Thursday visitation begin when school is dismissed and end on Friday when school commences.

What are the results of the alternative visitation times?  Thursdays become overnight visits, and when a Thursday precedes weekend visitation, as a practical matter visitation begins Thursday when school lets out and ends on Sunday at 6:00 p.m.  Thus, a noncustodial parent may have extended weekend visitation.

But this Family Code section, and another one like it - Texas Family Code section 153.317 - require the noncustodial parent to make these elections "before or at the time of" the original court order setting out visitation, or "before or at the time of" any modification order.  A recent Fort Worth Court of Appeals case faced the issue whether a noncustodial parent could ask for these elections by themselves, after a modification order recently had been signed.  The Court held that this parent had lost his opportunity to make these elections because he did not make them before or at the time the court granted the modification order.

Accordingly, a noncustodial parent who wants to elect these alternative visitation times must make these elections "before or at the time of" the divorce, a paternity order or a modification action, or the elections will be considered waived.

Tags: , ,