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Electronic Communication & Custody

Electronic Communication & Custody - Family Law Attorneys
Electronic Communication & Custody

The ability to communicate with your loved ones has greatly improved with the advancement of technology. Do any of you remember Citizens Band Radio (also known as CB radio)? When is the last time you saw a pay phone?

Today, the internet and your cell phone or other mobile device make it easier than ever to place calls, share videos, and instantly connect with your family in group text and chats. Children today are amazingly proficient on a phone, tablet or PC and able to easily communicate with friends and family electronically from anywhere.


Electronic Communication With Your Child. What is electronic communication?

Electronic communication is, essentially

any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media.”

Electronic communication can be used as a form of access to a child. This includes communication that is facilitated through email, instant messaging, telephone, videoconferencing, or webcam. Some examples of programs that are types of electronic communication are: Google Duo, Google Meet, FaceTime, Zoom, Skype, Facebook Messenger, and Marco Polo.


What would "reasonable” electronic access be?

The court will consider several factors such as the child’s needs, age, and the ability of the parent to ensure the child is available.

The court will also consider what the parents may agree to be reasonable. Generally, the following times may be unreasonable:

  • before school or early in the morning

  • past a child’s bedtime or late at night

  • at any time during the child’s school day

To curb interference with the other parent’s time with the child, the court may limit how often a parent may talk to their child within a day.

The court may also limit how long the child can be on the phone as too many or too long phone can present an issue; furthermore, most children do not have the attention span to talk on the phone for a long period of time.

It may also be unreasonable for a parent to call their child each day that the child is not in their possession. It could be an inconvenience to the other parent to make the child available at the same time every day during their week or weekend. A call a few times a week or weekends would most likely be reasonable.

Create a nurturing bond with your child. Parents should use their time with the child to bond and definitely not involve the child in adult conversations. It is not good co-parenting practice for parents to use the child to relay messages to the other parent.

What are the Requirements for Electronic Communication?

If a court decides to order this type of communication between parent and child, each of the parents must:

  1. Provide the other parent with the e-mail address, phone number, and other electronic communication access information of the child;

  2. Notify the other parent of any change in the e-mail address, phone number, or any other electronic communication access information no later than 24 hours after that information has been changed;

  3. If the necessary equipment is reasonably available, accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded to all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.

The third requirement – regarding the privacy of parent/child communication – might be the most important one.


Does the child also get electronic communication with me?

The Texas Family Code only discusses electronic communication by a conservator or parent. (See Texas Family Code 153.015).

But parents can agree amongst themselves to include times that the child can reach out to the other parent. If the parents do not agree, then a parent can ask the court to include times when the child can call the other parent.

Courts encourage parents to be flexible and accommodating when their child asks to speak with the other parent.


How do I know if I can have electronic communication with my child?

You must read your court order to determine if you have electronic access with your child.

Because not all court orders are the same, some court orders will say if a parent can talk to their child when the child is not in their physical possession. However, if your order does not explicitly say when you can talk to your child, then the other parent does not have to allow it.

Parents should be flexible and allow the other parent to speak with the child, within reason, because this allows the other parent to maintain a bond with the child.



Court Orders & Electronic Communication

In 2007, the Texas legislature passed a statute that permits electronic communication between parents and children when they are not together. The statute allows a court to award “reasonable periods of electronic communication with the child.” Taking into account the following:

  1. Whether electronic communication is in the best interest of the child;

  2. Whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and

  3. Any other factor the court considers appropriate.


When would a parent get electronic communication with their child?

Parents may agree to include electronic communication in their court-ordered parenting plan.

However, when parents do not agree, the judge may award electronic communication. The communication must be reasonable. The court will consider the following:

  • if including electronic access is in the child’s best interest,

  • whether all parties have the necessary equipment/devices to have electronic communication,

  • and any other factor the court thinks is appropriate.


Is electronic communication ordered instead of physical possession of my child?

Electronic communication is NOT used as a substitute for physical possession of a child. Typically, it adds to, or supplements, a parent’s access to their child.

Although, in some cases, electronic communication may be an appropriate substitute for physical possession. Some examples of these situations where electronic communication may be appropriate are:

Courts cannot consider electronic communication in determining a parent’s child support obligation. Texas Family Code 153.015(d).


What can I do if my current order does not include electronic communication for the parents?

A parent who wants electronic communication may file a modification lawsuit. If the court changes the current order, then the new order will contain the terms for when parents can talk to their child.

 

FAQs

1. What if the other parent does not let me have electronic communication?

If parents agree to electronic communication, it is up to the parents to follow the agreement. Typically, courts do not enforce agreements that are not a part of the court.

Parents may sign and file their electronic communication agreement, this document is called a Rule 11 Agreement.

If a parent refuses to follow the written agreement, you can file an enforcement lawsuit. Through the enforcement, the court can order the parents to allow electronic communication.

If you have a Rule 11 agreement, then it is an enforceable contract, relating to your lawsuit and may be helpful in the long run. If a party to a valid Rule 11 agreement breaches the agreement, they may be sued. A lawyer can help file the suit and tell you what remedies are available to you.


2. Does the other parent have to share contact information with me?

Parents will share the information where a parent can reach the child when the child is not in their possession. This information includes email addresses, phone numbers, or a child's screen name. This allows parents to reach the child. The parents must also notify each other of any changes to this information. Parents should share the new information at least 24 hours after the change happens.

Not all orders are the same. Your order will say if you must update your contact information with the other parent. Generally, parents must share and update their current home and cell phone number. See Texas Family Code 105.006.

You must follow your order if it requires you to share contact information with the other parent. If you do not share your updated information, you may be violating your court order and as a result, may be in contempt of court. Talk to a lawyer about the consequences of violating a court order. You should also speak with a lawyer if there are safety concerns in sharing new information.

Some orders may have a nondisclosure clause, which means you do not have to share your contact information with the other parent. You should speak with an attorney if you are unsure about your order. A lawyer can also help make sure that certain parts of your order are not conflicting.


3. Can I listen to my child’s conversation with the other parent?

Parents should not listen to the child’s conversation with the other parent. If there is a concern for the child’s safety or wellbeing you should speak with a lawyer. If the child has trouble with the device or experiencing technical difficulties, then the parent may help the child fix the problem but parents should give their child privacy when the child is talking to the other parent. See Texas Family Code 153.015(c).

 

At Sims & Purzer We can help you in any circumstance related to the terms, rights, duties, and obligations of your children's custody.

Contact us today! We love assisting families to do what is best. We listen closely to your unique circumstances, to make sure you know what your choices are.


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