Joint Legal Custody When One Parent Has Moved Abroad

Costa v. Costa, 440 N.J. Super. 1 (App. Div. 2015).  This decision today by Judge Leone is a matrimonial appeal.  Plaintiff Sandra Costa and defendant Paulo Costa, having married in 1994, were divorced in 2006 after having had two children.  They agreed to joint legal custody over the children, with plaintiff having primary residential custody and defendant having visitation rights.  The parties also agreed to consult with each other about issues relating to the childrens’ health, education, and welfare.  In 2009, defendant moved to a small city in Brazil.  He maintains contact with his children by telephonic and electronic means, but he no longer visits them.  Thus, since 2009, plaintiff has effectively had full physical custody of the children.

Nonetheless, plaintiff moved for sole legal custody, on the grounds that it had become too difficult to obtain a signed and notarized consent from from defendant, in English, that was required in order for the children to travel or to renew their passports.  Defendant responded that he had twice before given plaintiff authorizations to renew his the children’s passports, and he offered to agree to the issuance of an order by the court that would “give permanent permission to the [p]laintiff to renew the passports of [the children] and for them to travel to where they want without any future authorization from me.”  Defendant asked that he not be deprived of joint custody, since he still communicated with the children and he had “tried discussing matters with plaintiff.”  The Family Part denied plaintiff’s motion without oral argument.  She appealed, representing herself pro se, but the Appellate Division affirmed.

Judge Leone began by noting that modification of a custody order is a “two-step process.”  To prevail, plaintiff was first required to have shown changed circumstances.  If she made that showing, there would then be “a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by modification of the existing custody order.”  Here, the Family Part found no changed circumstances.  Though there had been “regrettable difficulties in obtaining a valid authorization to allow the children to renew their passports and to travel out of the United States,” defendant had offered the blanket authorization by consented-to court order.  The ruling of no changed circumstances was entitled to deference, given the expertise of Family Part judges, so that it was proper for that decision to have been made on the papers alone, without a plenary hearing.

Plaintiff also contended that the very fact that defendant had moved to Brazil constituted changed circumstances.  Judge Leone disagreed.  That is true of joint physical custody (which plaintiff did not seek to change), for which “geographical proximity of the two [parents’] homes is an important factor.”  But joint legal custody is about jointly making decisions for a child’s welfare and maintaining the attachments of both parents to that child.  Those ends can be achieved, despite “geographic separation, [through] modern telephonic and electronic communications.”

Finally, on appeal plaintiff argued that defendant had failed to communicate with her about matters affecting the health, education, and welfare of the chldren, that it had been hard to communicate with him by telephone, and that defendant often ignored her electronic commuications.  Judge Leone rejected these arguments, however, since plaintiff had not raised them in her submission to the Family Part, relying instead solely on the travel issue, and because defendant contested plaintiff’s position regarding the communications between the parties.