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NOT FOR PUBLICATION WITHOUT THE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.
I.
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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