Decisions involving cellphone and social media access for minor children have become one of the biggest aspects of parenting in today’s age. Those decisions impact everything from communication to safety to social development to mental health.

Case law on the issue of cell phones and social media access is scant, which suggests these issues have not yet risen past the circuit court level. Without that guidance from upper courts, we should consider the Wisconsin statutes in crafting orders that work for co-parents.

What follows is a discussion of areas where attorneys may consider incorporating cellphone and social media access into court orders, and how they may go about seeking court intervention when issues arise.

Legal Custody

Legal custody is the right and responsibility to make major decisions concerning a minor child.1

The question of access to cellphone technology in a child’s upbringing comes at a “critical stage” of a child’s psychosocial, cognitive, and emotional development. More specifically, these stages of development impact things like identity formation, values, independence, and self-esteem.

Often, these stages of development now occur online. At some point, parents may decide that a cellphone is an important next step for a child in strengthening relationships and maintaining communication. Research shows that parental involvement in relation to setting limits on phone usage can help keep children safe and make the children less likely to engage in risky behaviors.2

In surveys where teens self-reported their social media usage, mental health, and parental monitoring and relationships, data suggests low parental monitoring and weak parental relationships with the highest frequency social media users may be correlated to said users’ reports of poor or very poor mental health.3 The majority of teens who rate themselves as “almost constantly” online believe that they are on social media “too much.”4

This is where the issue of parents stepping in becomes important. While cellphone and social media access can feel necessary to parents and children for social connectivity, safety, and communication and coordination, today’s parents have to balance those perceived benefits against perceived negative impacts on mental health, sleep, academics, and through online safety threats. Therefore, it is important for co-parents to be ready to have conversations about how they will handle cellphone and social media access.

One way to make sure parents are prepared to have these conversations is through court orders on legal custody. When parties share joint legal custody, neither party’s rights are superior to the other’s.5 Major decisions must be made together and include, but are not limited to, consent to marry or enter the military before age 18, sponsorship of a driver’s license, nonemergency health care, choice of school, and choice of religion.6 In making an order of joint legal custody, upon the request of one parent, the court shall specify major decisions in addition to these listed.7

In cases where parents may have a difficult time remembering to consult their co-parent on something as important as social media and cellphone access, consider specifying these types of decisions as legal custody decisions in any court orders. In so doing, it will be important to consider whether the parties need additional specifics, such as ensuring both parents (and both parents only) may choose parental controls, monitor, and limit the child’s contacts.

Physical Placement

Physical placement relates to the “condition” under which a child is physically placed with a party, and under which that party has the right and responsibility to make routine daily decisions regarding a child’s care, as long as it is consistent with the major decisions made by those with legal custody.8

In orders on physical placement, we often include provisions that further set those “conditions.” In so doing, we walk a fine line between not wanting to micromanage the routine daily decisions a parent makes during their placement and allowing conduct that amounts to legal custody decision-making.

For example, an order that puts a limit on hours that a child may access technology may be seen as akin to limiting television or video game access: micromanaging too much. However, an order that prohibits a parent from blocking access to the nonplacement parent (either directly as a contact in a phone or by taking a phone away) may be necessary in some cases.

Family law practitioners are likely familiar with the all-too-frequent scenario where one parent is accused of taking the child’s cellphone for the sole purpose of blocking access to the other parent, which snowballs into conversations about whether the nonplacement parent is interfering with placement through constant contact with the child through the device.

It can help to get out ahead of these disputes by crafting an order that restricts the placement parent from taking a phone away, while also restricting the nonplacement parent from contact at a frequency that detracts from the placement parent’s time.

Variable Expenses

In shared placement cases, a child’s variable costs shall be paid in proportion to each parent’s share of placement, and based upon a detailed list of variable costs provided by the parties.9

If a child has a cellphone, that phone often comes with a cost, and if the phone has cell service tied to it (rather than just being Wi-Fi-connected), that service also comes at a cost.

Consider addressing cell phones in variable expense listings as either an inclusion or an exclusion, depending on the parties’ needs and wishes. For example, it can be included with the requirement that it is agreed-upon before purchase, along with all conditions for the same, or it can be on a list of exclusions that the parties can agree to deviate from if they so wish.

Contempt

Contempt of court means intentional disobedience, resistance, or obstruction of an order of the court.10

Not every order has provisions that relate to cell phones and social media use, but all orders contain provisions on legal custody, and many orders contain provisions related to communication with the nonplacement parent, communication between parents, and promoting the child’s relationship with the other parent.

Parents operating under orders that do not address cellphones and social media usage often come to us once something has gone wrong: it could be a child having a secret cellphone or social media account at the other parent’s house; it could be a parent blocking the child’s access to the phone or to their other parent through the phone; it could be one parent allowing unfettered access to social media and other applications that allow children to connect with strangers or to have inappropriate contact with peers; or more.

These sorts of actions could give rise to contempt claims for violations of:

  • joint legal custody (when it comes to that threshold decision about whether to open the door to cellphone and social media access);

  • provisions on communication with the nonplacement parent (when a child’s access to their phone or access to their other parent on their phone is blocked with one parent);

  • provisions on communication between parents when a child is given a phone or social media account without coordinating with the other parent; and

  • violations of provisions related to promoting the relationship with the other parent when the child’s access to that parent is denied and one parent is promoting an attitude of secrecy about what happens at their house.

Conclusion

Attorneys should consider updating their orders to equip parents to better address one of the biggest parenting decisions they will have to make: access to cell phones and social media and all the good and bad that go with it. This can be a time for parties to shine as co-parents, and we should give them the tools to do so.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

1
Wis. Stat. § 767.001(2)(a).

2 Aliah Richter, et al., “Youth Perspectives on the Recommended Age of Mobile Phone Adoption: Survey Study,” JMIR Pediatr Parent., 2022 Oct 31;5(4):e40704.

3 Tori DeAngelis, “Teens are spending nearly 5 hours daily on social media. Here are the mental health outcomes,” Monitor on Psychology, American Psychological Association, April 1, 2024.

4 Emily Vogels, et al., “Teens, Social Media and Technology 2022,” Pew Research Center, Aug. 10, 2022.

5 Wis. Stat. § 767.001(1s).

6 Wis. Stat. § 767.001(2m).

7 Wis. Stat. § 767.41(6)(am).

8 Wis. Stat. § 767.001(5).

9 DCF § 150.035(1)(b)6.

10 Wis. Stat. § 785.01(1)(b).