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The right to visitation is the statutory and social right given to a non-custodian parent to interact with a child. But due to the spread of COVID-19, physical visitation, and interaction of a disassociated parent with his child is not possible, hence virtual interaction may also be considered to be part of the right to visitation. The High Court observed while hearing a PIL filed, sought the framing of guidelines concerning the visiting to the children who are disassociated with the parents.
The bench of Justices Soumen Sen and Harish Tandon observed that children are the worst affected to the separation of their parents as the restrictions on the movement of the vehicles and other means of commutation impedes the visitation by physical interaction. The technology has been developed where the virtual interaction/visitation can also be taken as a part of the right of visitation. It added that like society, justice also changes with the advancement in the technology and medium of education. Therefore, the bench stated that an application filed by a parent seeking visitation virtually should have been activated by Court keeping in mind the welfare of the child.
It is true that the welfare of the child is paramount and visitation is one of the integral parts of restoring the broken thread between the litigating parents.
What is right? Salient features:
In the case of divorce, one parent is awarded sole physical and legal custody of a child and the visiting right is given to the non-custodial parent. Visitation refers to an act where a non-custodial parent spends time with his child. Visitation rights are promoted by the public policy because it ensures that the child maintains a close relationship with the non-custodial parent. The right encourages and supports the involvement of both parents in raising the child.
The history of the right can be traced back to the nineteenth century, where the courts regularly granted non-custodial parent, visitation rights, which were designed to equitably resolve the parents’ competing rights on the child. A visitation order would grant the non-custodial parent the right to visit the child “at all reasonable times,” which are flexible, and the non-custodial parent would select days and hours for visitation. Modern courts view visitation as a more ingrained right. In the United States, Section 407(a) of the Uniform Marriage and Divorce Act specifies that a “parent not granted custody of the child is entitled to visitation rights unless the court finds that such right would endanger the child’s physical, mental, or moral health.”
Types of Visitation
The right of Visitation can take three forms, Open, Structured and Unstructured visitation. In Open visitation, parents work together to determine a reasonable, liberal, and flexible schedule to allow the non-custodial parent to see the child. In Structured, visitation can be done only on pre-ordained days and times for the non-custodial parent. The court plays an important role in framing the visitation schedule to which parents can agree. In the Unstructured visitation, parents need to have a cooperative relationship which is often hard for divorced or estranged parents hence, this type of Visitation rarely works out.
The era of Virtual Visitation
Virtual visitation is a trending concept that allows the non-custodial parent to communicate and visit their child virtually through virtual means. It is a technology-driven right with a purpose to keep in contact with their child when it may not be possible to do so physically. It is often referred to as e-visitation or e-access. Conditions that may arise the need for virtual visitation are instances of the relocation of the custodial parent with the child or the non-custodial parent and recently due to lockdown for the cause of COVID 19. Virtual visitation generally refers to video chat applications, such as Skype or Google Hangout but it may also include instant messaging through social media messaging platforms like Facebook or text messaging or Email or telephone conferences.
Significance of this development:
Virtual visitation may benefit a parent-child relationship in a number of ways which includes helping a child with homework or reading a story to a child at bedtime or seeing subtle facial expressions on one another’s faces. This type of visitation is not intended to replace physical visitation, but only a supplement. Virtual visitation is typically allowed under the following circumstances:
- Child’s best interest: The decisions related to custody and visitation are made according to the best interest of the child, and virtual visitation is no exception. Virtual visitation may be granted by the Court provided that it doesn’t interfere with the child’s wellbeing and upbringing. This is the main determining factor.
- Separations involving long distances: This situation has been observed in various cases and is a common condition on which virtual visitation may be necessary. The relocation of parents in different states or countries, may increase the distance between the parent and child. But the right of virtual visiting not only strengthens the bond between them but also reduces travel expenses and other visitation costs.
- Circumstances requiring increased contact: Virtual visitation provides a secure and effective means to encourage increased contact between the kid and the non-custodial parent. This could be beneficial in cases where the relationship between the two is strained. It can also be beneficial where the child is under the impression that the non-custodial parent is not active enough in their life.
Virtual visitation promises an additional alternative way for the parents to have contact with their children when a personal meeting becomes impossible. Virtual visitation involves tech-driven methods to supplement face-to-face meetings. Some of the issues faced by parents in virtual visitation are:-
Parents and children deserve the right to have private communication, without the interference of other parents. When children do not have as much physical time with the non-custodial parent, virtual visitation is an innovative way to promote bonding. The parent should not question their children about the discussion, while they were engaged in virtual meetings. Since sole custodial parents enjoy the privacy and time they need with their children, the non-custodial parent too deserves that same right.
Virtual visiting in the case of minors can seldom prove to be impractical. Children younger than five often fail to maintain the focus to hold a conversation on the phone or video-conferencing application. They cannot read or write so emailing them is not something that can be done with privacy. Hence for a virtual visitation to work with younger children, it is necessary to have a cooperative parent.
Interference is an issue faced by divorced parents with regard to virtual visitation. In some cases, the frequency of virtual visiting is greater than physical meetings, which may be frustrating for the uncooperative custodial parent. Since technology is a subject to breakdown, it can be easily manipulated to portray as if not working. The custodial parent has a responsibility to make sure that the child is available to talk virtually when they are supposed to.
Apart from these, the virtual visiting right may be limited or denied by the Court. Factors that are considered by the Courts while doing so include:-
- Verbal Abuse:-
The first ground for denial of visitation is if the non-custodial parent has the tendency of verbally abusing the child or has threatened the child using verbal abuse. But the parent who has verbally abused the child carries the burden of proof that visitation is in the child’s best interest.
- Emotional Harm
The second ground on which a Court may deny visitation is potential emotional harm the child may have if there is a visitation. Since emotional harm is subject to interpretation and differs in every case, the claim for denial of visitation rights usually must be supported by testimony from a psychologist, school counselor, or other professionals who can testify as to the child’s mental health.
- Child’s Wishes
Thirdly, the Court may consider the child’s wishes if she’s old and mature enough to express her opinion. Since the law doesn’t provide for a precise age of maturity, it is determined by the facts of the case. In a U.S. case, Henshaw v. Henshaw, a 13-year old girl took the stand in a custody dispute and testified that she doesn’t like the company of her father because they have nothing in common and very often he embarrasses and criticizes her. The court found the child to be articulate and matured enough to clearly express her opinions and took her wishes into account when determining visitation.
Legislatures must recognize that virtual visitation will not be appropriate in all cases. Although a large percentage of the population has access to the internet, virtual visitation legislation should be flexible given the parents, children, and circumstances involved. Legislation should not be designed to force parents or children to use a form of communication that they are not comfortable with or to require them to purchase computer systems with high-speed internet.
The concept of “Internet visitation” or “electronic visitation” is relatively new and that has been considered as a need of the hour. Indian judiciary now has recognised the scope of virtual visiting and have realised the need to have enacted laws allowing courts to order online or electronic visitation in custodial matters. Legislators and judges play an important role in legitimizing the use of virtual visitation between parents and children. Recently in the case of divorce, it could be seen that issue regarding the relocation of parents is rising. This would lead to creating distance among the parents and their child. Moreover, in this situation of crisis due to Covid-19, to protect the statutory right of the non-custodial parent, the legislation for virtual visitation has to be promoted.
Author: Nilika Sett from Lloyd Law College, CCS University.
Editor: Akshat Mehta from Institute of Law, Nirma University.