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Father Moving Out of Country Does Not Give Cause for Termination of Legal Custody

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In a recent case out of the Superior Court of New Jersey’s Appellate Division, a panel of judges has affirmed a lower court’s ruling that logistical difficulties involved in sharing legal custody with a parent in a remote section of another country is an insufficient basis to terminate that parent’s legal custody. In the case Costa v. Costa, the parties had two children together while married but received a divorce in 2006. The parents agreed in their property settlement agreement to share joint legal custody, with the mother holding primary residential custody, and the father having visitation rights. However, the custodial arrangement became much more complicated when, in 2009, the children’s father moved to the city of Tremembe, a municipality of 38,500 citizens in Brazil. While the father stayed in contact with his children by telephone and through Facebook, he stopped exercising visitation rights upon moving to Tremembe. The mother’s family lives in Brazil, so the mother wanted to take her two children from New Jersey to Brazil to visit those relatives. Under federal law, in order to travel internationally as a single parent who shares legal custody with another parent, the parent needs properly notarized written authorization from the parent who isn’t present. While the father had given a legal travel authorization when he left the country in 2009, the parties had failed in attempting to obtain another travel authorization in 2012 that conformed with the authorization recommended by the U.S. State Department. After the mother failed in being able to obtain what she believed were necessary documents to travel with her children out of the country, she attempted to terminate the father’s legal custody of the children. The father objected, stating that he wanted to continue to have input into important decisions regarding his children’s health and best interests. In order to address the issue of the children’s ability to travel, the father offered that the court had his consent to grant the mother permanent authority to renew the children’s passports and to travel with them out of the country at any time, without his express permission.

In denying the mother’s motion to change the existing child custody order and terminate the father’s legal custody, the court found that circumstances had not changed sufficiently to justify changing the existing order. The court reasoned that, while circumstances had changed in regards to the father’s right to physical custody, sharing legal custody with a parent doesn’t require being in physical proximity with the fellow parent. The court found that the father could still have input into the making of important decisions via phone and email, despite the distance between them, and ruled that using an order from the court for any traveling the mother would like to do with the children would be sufficient to avoid any accusations at border crossings that the mother was trying to kidnap the children or was otherwise interfering with the father’s parental rights under New Jersey and federal laws. The mother attempted to argue on appeal that the father was often incommunicative when she tried to reach him to discuss issues relating to the health and education of the children, and was concerned that, in an emergency, he wouldn’t be available to authorize important treatments or decisions. The Appeals Division ruled that, while those were significant facts that could mean that the parents should no longer share legal custody, the mother would have to bring a different motion with evidence of the father’s unreachability, since she didn’t raise those issues when she first sought to terminate the father’s legal custody.

Custody battles can involve many nuanced legal arguments, as well as high levels of emotion. Choose an attorney for your family law matter who can authoritatively advocate on your behalf without aggravating existing conflict. Contact skilled New Jersey family law attorney John B. D’Alessandro for a consultation on your custody or divorce claims at 908-964-0102.

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