Edward R. Weinstein, Esq.

May FaceTime or Skype Be Court Ordered As Part Of My Parenting Time Or Visitation?

Yes. Over the past 20 years as a child custody attorney I have observed New Jersey law transform in alignment with modern technology. When I first became a lawyer in the 1990s, when two parents had a significant distance between them, the telephone was the primary manner in which a child could hope to remain in contact with a parent who lived in another state.

Kids

Over the years, I have observed an evolution in which court orders concerning visitation began to allow for contact ranging from email to texting to even social media contact between a child and their parents. Today, technology such as Skype and FaceTime has allowed for unprecedented opportunities for a child and parent to truly stay part of one another’s lives. Any parent who has ever been away for their child loves being able to see them on their phone, computer or tablet while communicating and sharing. As all parents embrace, the difference is truly night and day (as opposed to a mere phone call). Today, the attorneys at our law firm seek court orders in which judges allow for FaceTime or Skype even when both parents are still living here in New Jersey. The motto at our law firm has always been, “Kids First.” Clearly, a child’s ability to actually see their mom or dad when chatting dramatically enhances the child-parent bonding experience.

New Jersey Family Part courts have the same goal of always protecting the best interests of children. The parens patriae doctrine (i.e., A New Jersey Family Court’s authority to protect children at all times) furthers that goal. In Salazar v. Gonzalez, mother Katherine Salazar appealed an order of the Superior Court of New Jersey, Family Part of Somerset County, dated August 22, 2014, that denied her motion for reconsideration. Her ex-husband, David Gonzalez cross-appealed the same order for denying his own motion for reconsideration. The issue in the appeal was the Family Part Judges decision to give David additional parenting time with their child, in the form of Skype chats, which effectively modified the custody arrangement the parents had agreed to in their matrimonial settlement agreement. While New Jersey Courts tend to favor the resolution of matrimonial issue through mediation and settlement agreements, the Family Part is authorized by the parens patriae doctrine to modify or change mutually agreed to matrimonial settlement agreements that contain provisions regarding child custody and parenting time. In New Jersey all Family Part courts must be guided by an analysis of the best interest any child that may fall within its jurisdiction. The duty of a best interest of the child analysis enacts an obligation on a Family Part judge “to intervene where it is necessary to prevent harm to a child.”

Katherine Salazar and David Gonzalez got married on February 26, 2011, and got divorced shortly thereafter on May 3, 2013. They had one child together during the course of their marriage, born in February 2012. A property settlement agreement, including terms for support and custody, was incorporated into their final judgement of divorce. The point of a matrimonial settlement agreement is to memorialize in writing any agreements reached between divorcing, or separating spouses as to alimony, child custody, child support, and the division of property. According to their property settlement agreement, David would be entitled to one weekend of parenting time a month, but he had to exercise that parenting time in Arizona, where Katherine had moved with the child after the divorce. The property settlement agreement also allowed David to chat with his child through an internet video chat service, like Skype, once-a-month.

On May 19, 2014, David filed a notice of motion, and sought judicial approval for three Skype chat visits every week, because Katherine, allegedly, refused to permit him more Skype time, and he was not able to travel to Arizona to take part in personal visits, according to the terms of the settlement agreement.

As a result, Katherine filed a cross-motion that sought to dismiss David’s motion for lack of subject matter jurisdiction, and to relinquish jurisdiction to Arizona under the Uniform Child Custody Jurisdiction and Enforcement Act. For a court to have authority to pass judgment on a dispute, it must first have jurisdiction over the parties and over the type of legal issues in the dispute. Subject matter jurisdiction refers to the nature of the claim or controversy. Subject matter jurisdiction is the power of a court to hear particular types of cases. In state court systems, statutes that create different courts generally set boundaries on their subject matter jurisdiction. One state court or another has subject matter jurisdiction of any controversy that can be heard in courts of that state. Some courts specialize in a particular area of the law, such as Family Law. A divorce can be granted only in a court designated to hear matrimonial cases. Sometimes parties dispute what state has the authority and jurisdiction to hear a family law related matter.

The Family Part of Somerset County used its parens patriae jurisdiction, and relied on its equitable powers, and determined that David should be able to see and chat with his daughter twice a week, through Skype or a similar internet chat service. According to the parens patraei doctrine, the state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.

Furthermore, the Family Part judge determined that because David failed to submit any substantial proof that he was a resident of New Jersey in light of Katherine’s claim that he lived somewhere else, and because of the contacts the litigants had in Arizona, New Jersey courts would share jurisdiction over this case with Arizona courts. Both David and Katherine and filed motions for reconsideration of this decision, both of which were denied. Then both of them appealed to the New Jersey Appellate Division.

The New Jersey Appellate Division noted that during oral argument, both Katherine and David admitted that a trial had already been conducted in an Arizona state court. Therefore, the parents had waived any objections they might have had to Arizona’s jurisdiction, because they had previously consented to jurisdiction in Arizona. Because this jurisdictional issue had already been resolved, the appellate panel characterized it as moot and dismissed it.

Similarly, the New Jersey Appellate Division dismissed the parents’ arguments revolving around David’s Skype time with their child. Just like the jurisdictional issue, this parenting time issue had also been adjudicated by an Arizona state court. Still, the New Jersey Appellate Division made sure to note that they agreed with the trial judge’s decision to allow David additional parent time with his child, in the form of Skype chats, as an appropriate exercise of discretion. The New Jersey Appellate Division gives broad discretion to Family Part judges, and will only reverse a Family Part judge’s order if the legal conclusions are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. This is because Family Part judges have special expertise in family matters. They get to hear the case first hand, see and observe the witnesses, and hear testimony. Therefore, they have a better perspective on the equities of the case then any appellate judge could have.

The New Jersey Appellate Division further explained that the Family Part, at all times, must be guided by an analysis of the best interest any child subject that may fall within its jurisdiction. The duty of a best interest of the child analysis enacts an obligation on a Family Part judge “to interview where it is necessary to prevent harm to a child.”

Generally, a court must enforce the terms of a property settlement agreement unless there are “compelling reasons to depart from the clear, unambiguous, and mutually agreed to terms,” of the agreement. This is because New Jersey Courts favor the stability of arrangements in family matters. As long the terms of a property settlement agreement are fair and equitable, New Jersey Family Part courts will not unnecessarily change or disturb them. While New Jersey Courts tend to favor the resolution of matrimonial issue through mediation and settlement agreements, the Family Part is authorized by the parens patriae doctrine to modify or change even mutually agreed to matrimonial settlement agreements that contain provisions regarding child custody and parenting time.

Our law firm stands prepared to assist you in maintaining a relationship with the most important person in the world; your child.