Sandra Costa v. Paulo A. Costa

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2078-13T4

SANDRA COSTA, APPROVED FOR PUBLICATION

Plaintiff-Appellant, January 12, 2015

v. APPELLATE DIVISION

PAULO A. COSTA,

Defendant-Respondent.
_________________________________

Submitted December 15, 2014 – Decided January 12, 2015

Before Judges Sabatino, Guadagno and Leone.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FM-09-1139-06.

Mignone Lazaro Law Firm, LLC, attorneys for
appellant (Anita Mignone-Lazaro, of counsel
and on the brief).

Paulo André da Silva Costa, respondent pro
se.

The opinion of the court was delivered by

LEONE, J.A.D.

Plaintiff Sandra Costa appeals the denial of her motion to

terminate defendant Paulo A. 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. We affirm.

The parties were married in 1994. They had two children in

1997 and 2000. In 2006, they received a judgment of divorce.

In their Property Settlement Agreement (PSA), 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 the city of Tremembé, in the

State of São Paulo, 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.

She alleged the following. In order to travel abroad with the

children, she needed defendant to provide a notarized consent

form and authorization to renew their passports. As the form

was in English, defendant had to obtain notarization from a

certified translator in Brazil, "a process which is difficult

and costly." Defendant told plaintiff he was unable to obtain

notarization because of the limited availability of such

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notaries in his city. Defendant returned the paperwork

incomplete. In 2012, plaintiff traveled to Brazil, but was not

able to obtain the consent form "due to procedural

difficulties." Plaintiff's motion sought "sole legal custody as

the process of obtaining travel authorization from [d]efendant

is overly burdensome and has placed unreasonable limitations

[on] the minor children's ability to travel and to renew their

travel documentation."

Defendant's response to the motion alleged as follows. He

had given plaintiff a legal travel authorization to allow

plaintiff to renew the children's passports before he moved to

Brazil in 2009, and again when plaintiff traveled to Brazil in

2012. When she told him the 2012 authorization was not accepted

because it was improperly filled out, he agreed to provide

another authorization. However, he was concerned that the only

certified notary in his city would again prepare it improperly.

Thus, in his response to the motion, defendant expressly

"agree[d] that this [c]ourt 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."

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Defendant asked to retain joint legal custody of the

children to continue to be involved in decisions for their best

interests. He stated that he had regular conversations with the

children by telephone and Facebook, and that he tried discussing

matters with plaintiff.

On September 18, 2013, Presiding Judge Maureen P. Sogluizzo

considered and 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.

Plaintiff appeals.

II.

Modification of an existing child custody order is a "'two-

step process.'" R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div.

2014) (quoting Crews v. Crews, 164 N.J. 11, 28 (2000)). First,

a party must show "a change of circumstances warranting

modification" of the custodial arrangements. Id. at 63 (quoting

Beck v. Beck, 86 N.J. 480, 496 n.8 (1981)). If the party makes

that showing, the party is "'entitled to 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.'" Id. at 62-63 (citation omitted).

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Here, the trial court ruled that plaintiff failed to "'meet

the threshold standard of changed circumstances'" and thus

denied the motion without a plenary hearing. Id. at 62 (quoting

J.B. v. W.B., 215 N.J. 305, 327 (2013)). Such a denial is

reviewed for abuse of discretion, with deference to the

expertise of Family Part judges. Hand v. Hand, 391 N.J. Super.

102, 111-12 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J.

394, 413 (1998)). We must hew to that standard of review.

The trial court did not abuse its discretion in denying

plaintiff's motion without a plenary hearing. Plaintiff failed

to show a change of circumstances warranting modification from

joint to sole legal custody. The parties have encountered

regrettable difficulties in obtaining a valid authorization to

allow the children to renew their passports and to travel out of

the United States. However, defendant has now expressly agreed

in his motion response that the family court may issue the

requisite authorizations by court order.

Such an order should be sufficient to solve the passport

difficulties. Normally, both parents must execute an

application for issuance or renewal of a passport for a minor

under age sixteen. 22 C.F.R. § 51.28(a)(2), (a)(3)(ii)(G),

(c)(2) (2014). However, "[a] passport application may be

executed on behalf of a minor under age 16 by only one parent or

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legal guardian if such person provides" an order of a court of

competent jurisdiction "specifically authorizing the applying

parent or legal guardian to obtain a passport for the minor,

regardless of custodial arrangements; or specifically

authorizing the travel of the minor with the applying parent or

legal guardian." 22 C.F.R. § 51.28(a)(3)(ii)(E), (c)(3); see,

e.g., Patrawke v. Liebes, 285 P.3d 268, 271-72 n.10 (Alaska

2012); Ansell v. Ansell, 759 S.E.2d 916, 918-19 n.3 (Ga. Ct.

App.), cert. denied, __ S.E.2d __ (Ga. 2014).

Such an order, based on defendant's agreement, should also

protect plaintiff from any accusation that simply traveling

abroad with the children constitutes an interference with

custody, N.J.S.A. 2C:13-4(c)(2), child kidnapping, 18 U.S.C.A. §

1204(c)(1), or child abduction, 22 U.S.C.A. § 9101(2); see Hague

Convention on the Civil Aspects of International Child

Abduction, Art. 3(a). In any event, though the United States

Customs and Border Protection website recommends that a child

traveling with one parent have a letter, preferably notarized,

signed by the other parent acknowledging that the other parent

has given permission for the child to travel out of the country,

the United States "does not require this documentation."1

1
U.S. Customs and Border Protection, Children-Child traveling
with one parent or someone who is not a parent or legal guardian
(continued)

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Similarly, Brazil does not require such documentation for minor

citizens of the United States, although the United States State

Department recommends it.2

Plaintiff's motion did not request such an order. However,

nothing in the trial court's order or in our decision precludes

plaintiff from moving for and obtaining such an order.

Plaintiff asserts a parent's relocation to another country

itself constitutes a change of circumstances warranting a change

of custody. Such relocation normally constitutes a change of

circumstances for physical custody, for which "[t]he

geographical proximity of the two [parents'] homes is an

important factor." Beck, supra, 86 N.J. at 500. However,

plaintiff does not seek to change physical custody, presumably

because she has full physical custody as a matter of fact, if

not law.

By contrast, joint legal custody does not necessarily

require the parents to be in close physical proximity. Legal

custody is "the legal authority and responsibility for making

(continued)
or a group, https://help.cbp.gov/app/answers/detail/a_id/268/kw/
travelling%20children%20of%20divorced%20parents/session/L3RpbWUv
MTQxOTk2OTE0NC9zaWQvMmE4djNkYm0%3D/suggested/1 (last updated
July 7, 2014).
2
U.S. Dep't of State, U.S. Passports & International Travel,
Brazil, http://travel.state.gov/content/passports/english/
country/brazil.html (last updated Oct. 14, 2014).

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'major' decisions regarding the child's welfare," not "'minor'

day-to-day decisions." Id. at 487. Joint legal custody "seeks

to maintain [the] attachments [between parents and child] by

permitting both parents to remain decision-makers in the lives

of their children." Ibid. Even if physical custody is not

possible due to geographic separation, modern telephonic and

electronic communications can enable effective joint legal

custody and "preserve the decision-making role of both parents."

Id. at 500.

Plaintiff's appellate brief asserts that since relocating

to Brazil, defendant has failed to communicate with plaintiff in

any meaningful way regarding decisions as to the children's

health, safety, and education. Plaintiff also asserts that

telephonic communications are difficult and sporadic, and that

defendant mostly ignores her attempts to communicate

electronically. She asserts that she is largely unable to reach

defendant to make such decisions in a reasonable period of time,

and that she might be unable to make major decisions in an

emergency. Thus, she asserts joint legal custody imposes an

unreasonable burden on her and emotional harm on the children.

However, none of those factual assertions appear in

plaintiff's motion certification, which focused on her need to

obtain travel authorization from defendant. Plaintiff cannot

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ask us to overturn the trial court's ruling based on factual

assertions she never presented to that court, particularly as

those assertions are contested by defendant.

Affirmed.

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