My parents divorced when I was two years old. I remember my mom sending me off with my little rectangular flowered suitcase to my dad’s house on the weekends and for long periods in the summer. My dad lived in a house with my step-mom, my two half-siblings, and a springer spaniel about 15 miles away from the apartment I shared with my mom. I would come home on Sunday nights, after dinner.

My two worlds did not mix. I can’t remember calling my mom when I was at my dad’s house, or vice versa. They were very different, yet I had never known anything else. I respected the rules or lack thereof at each house, and didn’t think anything of my mom and dad’s different parenting styles.

Flash forward 47 years: I am a divorce and custody attorney, and a divorced mother of three daughters, ages 19, 17 and 14.

I admit that I have come along to the digital age reluctantly: late to texting, still not on Facebook, not a Tweeter. However, I have observed, in both my personal life and in my practice, that the smartphone is now the conduit between the two worlds children experience when parents divorce. When a child transitions from one parent to another, the child is only a text, call or Snapchat away from the other parent.

I often receive texts and photos from my children at the zoo, or surfing, while they are with their dad. Is that a good thing? Does the immediacy of available contact keep the bonds between children and both parents tighter when parents separate? Or can the immediacy of contact actually alienate a non-primary parent from creating a bond with his/her child and impede his/her ability to establish a separate home? Why am I getting texts at 11:30 at night? Shouldn’t the children be asleep by then? Is the smartphone essentially a third-party supervisor, watching over how a parent conducts his or her authority?

This article explores issues that I have seen in my own life, and with my clients, regarding the pros and cons of the smartphone as it relates to custody. It proposes that parents discuss parameters for how digital communication will be used on each parent’s custody time.

Pros of the Smartphone

  • A child may feel more secure leaving his or her primary residence. Similarly, a primary caregiver may have more confidence allowing the child to leave. Most parents do not have a roadmap for separating from their children. Even with the best of intentions, a parent who has been a stay-at-home parent may find it very difficult to accept that divorce changes the rules of the road. With the smartphone making the child a phone call, Facetime, Skype, Snapchat, or WhatsApp away, both the primary custodial parent and the child can feel safe in the transition.
  • A child can call for help in an emergency, or if they get confused about who is picking them up on a given day. Most children learn at a young age how to use the phone for emergency purposes. With complicated custody schedules, and with unpredictable traffic patterns in the Bay Area, a child having a phone to check on whose day it is to pick up, or where a parent is, can be a huge comfort, averting chaos that might otherwise ensue if the child or noncustodial parent simply assumes that a parent has forgotten a pickup.
  • A child can stay in contact with a parent who lives far away or who has to travel for long periods. Move-away cases are the most difficult in family law: if one parent has to move, it is impossible to “compromise” a child’s custody. A child must live in one place for school, even if the child spends long periods with the non-custodial parent over holidays and summer vacations. If a parent lives cross-country, or even on a different continent, financial limitations may make visitation even more limited. The smartphone can brilliantly bridge the communication gap. Even with time differences, texting and simple communication can keep a child feeling close to the parent who has moved away. Imagine how much more satisfying it is for a child to tell her parent that she got cast in the school play herself, or got an A on a test, or even bad news like not getting invited to a birthday party “real time” with a text, rather than waiting for a weekly scheduled call.

Cons of the Smartphone

  • Sometimes I get calls multiple times a day when my children are with their dad. The girls love to have dad take them shopping. The girls often take selfies in an outfit they are thinking of buying. While I love my children, I want them to “be with dad” on dad’s time, and dad to be the advisor on those difficult shopping decisions.
  • A smartphone can lead to “reporting on a parent.” My ex-husband doesn’t do things like I do—that’s the nature of parents—whether the children are in an intact family or divorced. A divorce can highlight different parenting styles, which are often hidden in an intact family. Last year, my ex-husband took the kids to Comic Con and paid to dress them up as zombies. I took them to see Carole King. If children are accustomed to one parent’s style, children can perceive the other parent as doing things “wrong” and might feel compelled to “tell on” the other parent while they are at one parent’s home. I have seen children write real time reports on what they were fed at the other parent’s home, or the snack that was or wasn’t provided for school. Similarly, I have heard of the non-custodial parent regularly texting to find out what is happening at the other parent’s home. Common sense tells me that “reporting” on one parent’s style leads to division between the parents, leading to divisiveness and insecurity for the children.
  • I have seen children privately record conversations with a parent and share it with the other parent. Regardless of the illegality of private recordings, this kind of behavior breaches the sanctity of a parent/child relationship. Not using children as conduits for communication is one of the tenets to successful co-parenting. A child who believes he can use his smartphone to allow one parent into the privacy of the other parent’s home is ripe for becoming alienated from the recorded parent. The recorded parent will assume that the other parent encouraged the recording whether or not the accusation is founded. The accusations can spiral into custody battles or children aligning with one parent, which are detrimental to healthy relationships between a child and both parents.
  • Parents often have different rules about smartphone use. In the old days, one parent might object to the other parent allowing a television in a child’s bedroom at the other parent’s house. Now, children can access media on a device that they can hide under the covers. Different rules about smartphone use at different homes, or different standards for online access to media sites, can be confusing for a child. Why does mom allow the child to Snapchat with friends until 9pm, while dad won’t allow any phone use after dinner? In one recent case, one parent would only allow the children to use a flip phone, for emergencies only, and the other parent provided smartphones for the children to use on her custodial time. Is one right, or wrong?

Proposed Solutions

There are no easy solutions to the custody complexities that have been created by the digital age. However, like any co-parent issue, advance discussion regarding the issue can ease conflict.

While co-parenting plans often outline who takes the children each year for Christmas, or who plans the children’s birthday party each year and whether both parents can attend, most co-parent plans do not include provisions regarding smartphone usage. Family law counsel, co-parent counselors and family therapists should encourage their clients to get in the weeds discussing smartphone usage and to develop agreements regarding:

  • When or if a child will be provided a smartphone;
  • The hours that a child can use her phone;
  • How often children should be allowed to call the non-custodial parent and how often the non-custodial parent should call the children;
  • Whether confiscation of the phone as a punishment is permissible and whether the confiscation should apply on both parents’ custodial time;
  • Whether the parents need to mutually agree on the social media sites or apps that a child can use;
  • Whether children should have a credit card linked to the smartphone; and
  • Whether the parents should both have passwords to their child’s digital devices.

Parents should periodically review their ground rules regarding technology usage to reflect changes in technology (remember MySpace?) and to adapt to their children’s ages. While many custody discussions focus on what might appear to be the seminal issues in custody, such as timeshare, choice of school, or agreement on after-school activities, the technology that the child holds in her own hands can be an unforeseen minefield if the issue has not been discussed.

Even in instances where parents cannot agree on smartphone usage, an agreement that spells out the differences at each parent’s home is a win for everyone. For example, if dad forbids the children to use a smartphone at his home, but mom allows phones, they should both tell the children that they have agreed upon different rules at each home but that neither is right or wrong. The simple act of communicating the agreed-upon differences takes the issue out of the child’s hands and reduces the chance of divisiveness over the issue.

While the smartphone is a revolutionary tool, it is not smarter than divorcing parents who put the effort into creating a roadmap for their children’s use of technology and clearly communicate the plan to their children.