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    Child Custody and Phones: The 8 Toughest Questions, Answered by Therapists and Attorneys

    Child Custody and Phones: The 8 Toughest Questions, Answered by Therapists and Attorneys

    “These are very difficult things: how do parents who are split have privacy, the ability to feel safe, and still navigate healthy relationships? It’s challenging! The same things that create safety and privacy can also be used to manipulate and control. There’s no hard and fast way to keep that from happening.” – Rebecca Hubbard, MS, LMFT

    We have compiled a comprehensive “top 10 pain points” for split homes regarding custody and cell phones, a “when it is okay to give your child a phone” post for split homes, and an article that includes therapist answers to the question “How often should I contact my child at the other parent’s house?” 

    In this article, we’ve put some of your toughest questions to both therapists and lawyers.  

    Disclaimer: These responses are stories and observations. They are not legal conclusions or advice. You need to consult a lawyer or therapist for hard-and-fast answers to your specific situation. 

    With that said, these illustrations can help you determine what you value and what choices to pursue with a therapist or an attorney, if you choose to go that route.

    Question #1: Can a court take away a phone, game, or make restrictions on use of technology?

    Taking phone from little girl

    Dr. Brooks shared his experience with families:

    “It’s highly unlikely that the court will intervene to take on the role of “parent” with regard to restrictions about screen access or use, unless it is egregious (e.g., letting a 2-year-old watch slasher films or an 8-year-old watch pornography). In order for the court to step in to manage screen time, a parent would likely have to prove that allowing a particular type of screen use or access by one parent is causing negligence or harm to the child in question. That’s very difficult to do, and a slippery slope that courts would rather be involved in – they don’t want to police parenting practices.” 

    William Neal, a partner at Neal Ashmore Family Law Group discusses his 40+ years of experience with custody court cases and states,

    “If there is a cell phone in existence, then the Court can enter orders regarding the phone. Such as: having certain apps on the device or splitting payment of phone plan.” 

    Furthermore, Neal has seen orders stating that the phone should not be wet, turned off for extended periods of time, or batteries removed. The reason is because in more nasty splits where feelings of hurt and anger still reside between parents, one parent might disapprove of the child having the phone. Or, when the child is in custody at one parent’s household, the other parent may continuously text or call during that time. Resulting in a phone in the toilet or the phone mysteriously dying. 

    Question #2: Should both parents have password access? Can parents search the phone?

    Boy holding out password screen

    Brooks:

    “There is no “right” answer to this question. There are many “it depends” variables involved (e.g., age of the child, type of device/program/app). In general, for younger kids, I think it is good for parents to have password access to their child’s phone. However, I would recommend defaulting to trusting the child and being transparent. Thus, parents are involved in their child’s screen use but not micromanaging or being a “helicopter” parent.

    Parents should tell the child upfront what the situation is rather than clandestinely checking through their child’s phone at night. It might be something like, 1. I have access to your phone, 2. I’m unlikely to check anything, 3. Unless you give me reasons to be suspicious or break my trust.

    In a divorce situation, it’s best that both parents are on the same page with regard to how much privacy they allow their child with their device. Trust goes both ways. So, parents are upfront about telling their child the limits of their privacy. Kids need a certain level of independence to grow to be healthy adults. Looking constantly over their shoulder, in the virtual sense, does not serve that purpose. However, through discussions on the frontend, kids know what constitutes appropriate/responsible device use, what crosses the line, and what the consequences are of misuse.

    What rights does the dad have? 

    This would depend upon specifics of the divorce decree – who has primary custody? Is it joint custody? Even the non-custodial parent is able to make decisions for the care of a child during emergency situations (e.g., accidents).”

    Romy Taubman, a family law attorney and author of “Who’s in Charge? Custody Issues in the Smartphone Age?” shares her legal knowledge and expertise:

     “This is obviously family and child specific. When a child is younger, I believe both parents should have password access. The child needs to be accountable for appropriate use of the phone and understand that the phone is a privilege, not a right. But, I think that if the child is responsible, and shows that she is using the phone appropriately, her privacy ought not be invaded simply because a parent has the password. You wouldn’t want your parents reading your diary just because they can enter your room. 

    But, if a parent had reason to believe her child was doing something dangerous or engaging in unsafe behavior, a parent would be right to enter a child’s room and take whatever steps were necessary to intervene. A similar principle should apply when a parent decides if he or she should access his or her child’s phone.”

    Neal:

    “I have seen situations where the phone is locked by a password. However, one parent will tell the child that the other parent does not have the right to have access to the phone or see what is on the phone. Therefore, a child may refuse to unlock or open the phone around one guardian.

    Again, this often occurs to resentment and anger between separated parents, which results in a triangulation with the child. This is a parenting problem more than anything else, and courts have intervened in the past with orders.”

    Question #3: Can a court make you give your child a phone?

    Dad holding littler girl up like an airplane

    “In theory, a court can make you do pretty much anything. They can block pretty much anything, too,” said Hubbard, “but I have never seen a court make a parent provide a phone for their child.”

    Brooks:

    I’m not certain, but it is most likely that the court could require that the parents give a child a cell phone these days, particularly if there are difficult logistical issues to work out or there is any fear whatsoever that one parent might break some of the custodial agreements (e.g., travelling outside of a certain area). Still, it is most likely to be decided on a case-by-case basis. For instance, the court would be hesitant to require a parent get a smartphone for a 4-year-old but would be much more likely to require that a 14-year-old be given a smartphone.

    Addressing costs, Dr. Brooks concluded that “the court would be unlikely to mandate that a child be given a phone if the parents could not afford one”

    Taubman: 

    “I have never seen a court order a parent to buy his or her child a cell phone.  Usually the question is whether the Court can order a custodial parent to allow the child to have the phone to be in communication with the noncustodial parent.  In those instances, usually a court does have authority to order that the child be allowed to use the phone to contact the noncustodial parent.”

    Question #4: What should be allowed on a phone?

    Girl holding phone

    Brooks:

    “There should be restrictions on what is and isn’t allowed on a child’s phone, just as parents wouldn’t drop their kids off to play in a random area of the city. Most importantly, there’s the question of whether a phone is developmentally appropriate for a child in the first place. Smartphones are extremely powerful devices and there are all sorts of trouble kids could get into, so it’s better to prevent that on the front end.

    If it is decided that a cell phone is appropriate, then the apps and other features should still be developmentally appropriate. Thus, you wouldn’t want a 10-year-old to have access to pornography. Ideally, you want a safe environment for kids to begin with – just as we wouldn’t want our kids riding his/her bike in a rough neighborhood at 1:00 in the morning.

    A big advantage of the Pinwheel phone is that it allows kids to explore, communicate, create, and play in a safe environment so that they get more of the benefits without the biggest negatives. 

    Question #5: What if a parent is doing something bad via the phone?

    Man holding a GPS tracker

    Brooks:

    '“Bad,” like beauty, is often in the eye of the beholder. There’s a difference between what is actually harmful to a child versus what is “not ideal” or against one parent’s values. For instance, one parent might think it is “bad” or even harmful to give a 10-year-old a smartphone to begin with, whereas it would be difficult to prove that and the research doesn’t definitively say one way or the other. However, if there is actual harm or potential for harm (e.g., a suspected pedophile texting a child and the parent does not monitor/intervene), then the concerned parent should contact Child Protective Services, his/her attorney, and a mental health professional.'

    Hubbard:

    “One of the things I’ve seen is where one parent is totally against the kid having a phone at that age, and the other is insistent that they have it. In one case, the parent who insisted on the child having a phone was grooming the child, wanting to contact a five-year-old in the middle of the night and doing abusive things.

    I could see it happen where a dad or mom gives a phone to the kid so they can control the other parent. If I have location-tracking services, then I can know where my ex is at all times—something terrifying in domestic violence situations.

    I also think we can’t really keep people from using phones for bad purposes. Some people are going to do it. If this happens, then a parent needs to contact their attorney immediately and in cases of imminent harm contact the police.

    Question #6: Can a parent read the other parent’s text conversations with a child?

    Mother taking phone from girl

    Hubbard:

    “I believe that text conversations just like phone conversations should be private unless there are concerns about safety. There needs to be conversations between the parents and child if the child is old enough to participate. If the parents agree to read the other parent’s texts, then it needs to happen with everyone knowing. When things happen in secrecy, I worry about the harm to relationships. One of the things that comes to mind is that this is a great avenue for triangulation. For example, if a kid says to Mom, “Can I go here?” and Mom says, “No.” Then the child asks Dad who says, “Ask your Mom.” The child says, “Mom says yes” then the Dad says, “Okay, you can go.” This has the potential to increase conflict between parents.

    The other issue is how one parent may try to manipulate the other through texts with the child. If either of these are an issue, they should seek therapy.”

    Brooks:

    'Unless there is a compelling reason (e.g., safety concerns), parents probably should not read text conversations between their child and the other parent. It’s intrusive. Kids need their independence, and they should be allowed the freedom to converse with the other parent without the fear of electronic eavesdropping. This allows them to develop their relationship with each parent without the other interfering.

    Ideally, parents develop the type of trusting relationship with their child so they can ask how things are going with the other parent: “I’ve noticed that you’ve been texting your dad a lot lately. Is everything okay? You know, if there’s something going on that’s bothering you, I’m always here for you too.”

    Transparency is a key. If there are reasons, from history, that one parent is concerned about the other parent’s interactions with the child, then the parent should make it clear that they might need to check the text conversations from time-to-time. Still, it would be good to say something on the frontend like, “Rather than checking your phone, I’d rather you come to me if something between you and your dad is troubling you. How about we come up with a little agreement about what that would look like?"'

    Taubman:

    “This is not a good practice. A child needs to be able to have a relationship with each parent, without intrusion from the other, as much as possible. However, if one parent has genuine cause to believe that the other parent is texting with the child as a way to interfere with the child’s relationship with him or her, then the concerned parent should ask the child to show him or her their phone before just taking it.

    If there is a therapist involved with the family, and one parent is concerned, I would recommend having the therapist review the child’s texts rather than the other parent.”

    Neal: 

    “The property of the phone is under the account holder who owns the phone and pays for the account and monthly subscription or service plan. As the child goes to the other parent’s household, then the Court could press into what is allowed or disallowed regarding the phone. 

    As a parent, you have responsibility and rights to make decisions regarding technology. If there is a reason to read the texts or review the communication that appears on that phone, then you could bring that to the court if a dispute occurs between you and your former partner.”


    Question #7: What are reasonable boundaries for texting/calling your child when they are not in your physical custody?

    Little girl talking to her dad

    Taubman: 

    “The boundaries will change as a child develops. Younger children will typically want more frequent communication with the noncustodial parent than an older child. In general, the frequency of communication should be directed by the child’s needs, not the parent’s needs. That’s the most important rule of thumb.  

    If it’s the parent doing the texting and calling, that’s a red flag. If the child is using the phone to call or text to check in with the other parent, that should be respected. And, the timing of the communication should be based on what works at the custodial parent’s home. For example, if the custodial parent generally has a routine of dinner at six o’clock and then a bath and stories, the noncustodial parent should time his or her texts or calls to not interfere with the routine.” 

    Brooks: 

    What is reasonable depends upon many variables but, in general, as kids get older, parents need to back off more. Also, parents should talk with their child on the front end to come up with a plan for what seems to be reasonable level of contact. Flipping perspectives can also help: How much would you want the other parent to contact your child when the child is in your custody? Importantly, sometimes the child is initiating the contact or asking for it. If this is the case, then it could be that the child is dealing with some level of anxiety or fear that needs to be addressed.” 

    Question #8: Should a credit card be linked to the child’s phone?

    Smartphone money transactions

    While you can eventually have the child manage their own money, for example using Greenlight or an account at your bank, that’s usually not how transactions start on a phone. Whether it’s getting an Audible book or upgrading Spotify, there will be some transactions on the phone. 

    Brooks:

    “Much care needs to be taken when it comes to linking credit cards to a child’s phone. For younger kids in particular, they should not be linked or, at the least, parents need to enter the password (one that the child doesn’t know) for purchases. Agreements about what responsible use looks like should be decided on the front end. As a child gets older and shows him/herself to be responsible, parents should step back and allow more freedom with regard to purchases.

    Still, this does not to be all-or-nothing, and there’s no reason that a child should have full access to a parent’s credit card to make purchases. Perhaps parents could co-sign for a debit card, and that card be the one used by the child to make purchases. Thus, there can be a certain amount of money put on the card allowed per month, tied with allowance, etc. That way, a child can learn responsible use of money, the delay of gratification, which purchases yield a good return on investment, and so on. Parents should monitor their credit card statement and online purchase history to ensure that the child is making responsible choices.”

    Hubbard: 

    “If a parent sets up and has agreed they’ll pay for a certain subscription on the phone, that parent should have a password linked to that for that parent alone by default. They’re the only one who can see that information or change it, since they’re paying for it.

    I’ve encountered a situation where a kid was able to extract a whole credit card number from something a parent had purchased on the phone, then order things with that number. When children are angry, they are going to do things to get their parent’s attention. This kid stole the mom’s credit card twenty-five different times over the years that I knew them. So, if possible I think credit cards should not be linked to children’s phones."

    Taubman:

    “In general, I would not recommend having a credit card linked to a child’s phone. There are a number of other ways to assure that a child can have access to funds, such as loading funds onto a favorite site, or giving the child prepaid cards. There might be limited exceptions such as when a child is old enough and responsible enough not to misuse the privilege of having the card on his or her phone and knows how to cancel the credit card if the phone were lost or stolen.”

    Helping You Find a Solution

    There’s no doubt that issues involving child custody and cell phones can be complicated and difficult. Not any one situation is the exact same, which means that solutions will be different as well. With that said, if you or your ex are thinking about getting your child(ren) a phone, check out the Pinwheel smartphone. We’ve created a phone specifically designed for children and perfect for navigating the complexities of two homes!