Establishing a ‘Change of Circumstances’ in New Jersey for Modifying Custody in a Multi-National Situation

passportA mother’s extreme difficulty in obtaining international travel documents to allow her children to visit their father at his home in Brazil did not warrant changing the parents’ custody arrangement from joint to sole custody, according to a recent Appellate Division ruling. While the family’s travel complexities were a new development, they did not rise to the level of a “substantial change in circumstances,” as needed to modify an existing child custody arrangement. As this case highlights, courts, in the interest of stability for the children, require significant showings in order to change custody arrangements.

The custody dispute involved two former spouses, Paulo and Sandra Costa, who divorced in 2006 after 12 years of marriage. At the time of the divorce, with both of the Costas living in New Jersey, they agreed to joint custody of their two children, who were six and nine. Three years later, though, the father relocated to a small town near Sao Paolo, Brazil.

Problems arose when the mother encountered problems trying to travel to Brazil to see their maternal grandparents (the wife’s parents) who also lived in Brazil . However, in order to renew the children’s passports, the father needed to complete a notarized authorization form. The father did so, but the notary completed the form incorrectly. As a result, the mother was unable to travel with the children to Brazil. She then went back to court in New Jersey to seek sole custody of the children. She reasoned, correctly, that if she was the children’s sole legal custodian, then she would not need the authorization form from the father to renew the children’s passports.

The father contested the wholesale change of custody from the joint legal custody they’d enjoyed until that time, to sole legal custody to the mother only. The mother asked the New Jersey court to issue an order that would give the mother this sole legal custody basically to allow her to act unilaterally to renew the children’s passports. However, she did NOT seek to expressly limit this change in custody to merely obtaining the children’s passports unilaterally. It was, effectively, for this reason that her application was denied by the trial judge whose decision was upheld by the Appellate Division. Based on the Appellate Division’s discussion, had the mother simply sought to carve out a limited exception to the joint legal custody arrangement that then existed, for the sole purpose of obtaining the children’s passports without the father’s written authorization, the court could have entered such a limited order, especially in this particular case where the father had responded to the mother’s original motion by specifically stating that he was in agreement to allow her to have sole authority to apply for, and obtain, the children’s passports without his written authorization. He did however, oppose the wholesale change of their joint custody which he wanted to leave intact so that he could continue to be involved in making decisions regarding the children.

As a result, the trial court rejected the mother’s change request without a hearing. The appeals court upheld that ruling, explaining that two factors figured into a decision regarding custody changes. The parent seeking the change must prove i) that a change of circumstances significant enough to necessitate a change had occurred, and ii) that the change would be in the children’s best interests. In the Costas’ case, they never got past the first factor. While the passport problems were “regrettable,” they were not severe enough to require taking legal custody away from the father. In fact, the father expressly asked the trial court to issue an order that would give the mother all the authorization she needed to avert future passport problems – but NOT to change their joint legal custody.

The appeals court also rebuffed the mother’s argument that the father’s relocation outside the United States was, by itself, a sufficient change of circumstances. This would be correct if the relocating parent is the primary physical custodian. If the father had the children most of the time, his relocation would have warranted re-opening the custody arrangement. However, because the children lived with their mother, the father’s move to Brazil was not automatically a significant change of circumstances. The mother, who sought this relief from the court, failed in her attempt because she did not properly seek an order limited to the primary objective she desired to achieve – that is, securing the children’s passports without their father’s participation in the process. Had she done so, she would most likely have succeeded.

The Costa case recites the manner in which a situation such as this could, and should, be pursued:

It confirms that an order issued by the family court which expressly authorizes one parent to obtain the passports of the parties minor children without the participation or signature of the other parent, should be sufficient to solve the passport difficulties which were encountered by Ms. Costa. Typically, both parents must execute the application for the 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, the law further provides that “[a] passport application may be executed on behalf of a minor under age 16 by only one parent or 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).

If Ms. Costa had sought such a limited order instead of an order that permanently modified the joint legal custody to sole legal custody to her, especially based on the father’s express agreement he articulated in his responsive pleadings which he filed in opposition to her application for a change in custody, such an order would also have served to protect her (or any parent similarly situated) from any accusation by the other parent that simply traveling abroad with the children might constitute an interference with custody (pursuant to N.J.S.A. 2C:13-4(c)(2)), child kidnapping (pursuant to 18 U.S.C.A. 1204(c)(1)), or potential allegations of child abduction (pursuant to 22 U.S.C.A. 9101(2));

In addition, there is guidance to parents traveling with one’s children without the other parent that can be fouhd on the website for the United States Customs and Border Protection (USCBP). It recommends that a child traveling with one parent have a letter, preferably notarized, signed by the other parent acknowledging that the other parent expressly gives permission for the child to travel out of the country. It further indicates that the United States “does not require this documentation.” However, it is prudent to have it! Additionally, the country of Brazil does not require such documentation for minor citizens of the United States although it is highly recommended by the United States State Department.

Ultimately, the lesson learned from Ms. Costa’s plight was this: Because her motion did not request the limited order to grant her sole legal custody for the limited purpose of allowing her to obtain the passports herself, she failed. She sought far too drastic a remedy (sole legal custody entirely) than was needed for her primary objective. Fortunately though, there was no provision in the order issued by the trial court which would prevent her from seeking, and almost certainly obtaining such an order that was limited to the ability to obtain the passports for their minor children but did NOT change their joint legal custody arrangement in any other respect.

Child custody arrangements work best when reached, and then carried out, through the collaborative efforts of the parents. Even with the good-faith efforts of both parents, changing life events may create new challenges for your family. The need for children to travel internationally with a parent presents issues that must be addressed which may not have existed when the parents and the children traveled together in the past. For skillful representation and helpful answers with your custody case, or traveling outside the United States with your minor children, and obtaining a passport for a minor child, talk to the New Jersey family law attorneys of Goldstein Law Group. Contact us online or by calling 732-967-6777 to request a confidential consultation.

More blog posts:

When Your Child Custody Arrangements Change, Child Support Obligations May Change As Well, New Jersey Divorce Lawyers Blog, Nov. 3, 2014

Court Fashions New Guidelines For Deciding Disputes Over A Child’s Preschool Choices in New Jersey, New Jersey Divorce Lawyers Blog, Oct. 16, 2014