Child Custody, Visitation & Relocation

Joint Legal Child Custody Preserved in Spite of Parent Living Abroad And International Travel Complications

In the international child custody, family law case of Costa v. Costa, 20-2-5469, A. 2078-1374, App. Div. (Jan. 12, 2015) the plaintiff Sandra Costa appealed the denial of her motion to terminate defendant Paulo Costa’s joint legal custody over their children. Plaintiff sought termination due to difficulties in obtaining the appropriate forms to allow the children to visit her parents in Brazil.

The parties were married in 1994. They had two children. In 2006, they received a judgment of divorce. In their property settlement agreement, the parties agreed they would share joint legal custody of the children. Plaintiff received primary residential custody and defendant received visitation rights. The parties agreed to consult one another regarding education, health, welfare, and other matters of similar importance affecting the children.

In 2009, defendant moved to Brazil. Defendant maintains telephonic and electronic contact with the children, but he no longer exercises visitation with them.

In 2013, plaintiff filed a motion for sole legal custody. In order to travel abroad with the children, she needed defendant to provide a notarized consent form and authorization to renew their passports, which she asserted he did not successfully complete.

Defendant asked to retain joint legal custody of the children to continue to be involved in decisions for their best interests. He stated he had regular conversations with the children by telephone and Facebook, and that he tried discussing matters with plaintiff.

Judge Sogluizzo denied plaintiff’s motion on the papers. The court ruled that plaintiff had not met her burden to show a change of circumstances or to demonstrate that joint legal custody was not in the best interests of the children.

The appellate panel determined that the trial court did not abuse its discretion in denying plaintiff’s motion without plenary hearing. Plaintiff failed to show a change of circumstances warranting modification of custody. A parent’s relocation to another country normally constitutes a change of circumstances for physical custody.  By contrast, joint legal custody does not necessarily require the parents to be in close physical proximity. Modern telephonic and electronic communications can enable effective joint legal custody and preserve the decision-making role of both parents.

While the parties encountered regrettable difficulties in obtaining a valid authorization to allow the children to renew their passports and to travel out of the United States, defendant expressly agreed that the family court could issue the requisite authorizations by court order. The appellate panel affirmed the denial of plaintiff’s motion to terminate defendant’s joint legal custody over the children.

Reference: Case & Analysis, New Jersey Law Journal, 219 N.J.L.J. 165 (January 19, 2015)

Filed Under: Family Law; Child Custody; Change of Circumstances

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