Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In N.J. May Parents Have Joint Legal Custody When They Live In Different States?

Yes, joint legal custody does not require the parents to be in close by to one another geographically.  As one of the first attorneys on the Internet, my New Jersey based law firm has handled countless relocation cases, ranging from Florida to India.  Following please find this lawyer’s full explanation as to why parents may have a great distance between them yet enjoy joint legal custody of their children.    

Joint legal custody is an arrangement where both parents share in the care of the child, and make decisions about the child’s welfare together. Shared physical custody is where the child has two homes, and spends at least 35% of his or her time with the other parent. Parents can also mutually agree to a special joint custody arrangement that is a combination of joint legal and shared physical custody. In a joint custody arrangement, it is vital for both parents to communicate, and make decisions that might affect the child’s welfare, together.

Sole custody on the other hand is comprised of only legal custody and physical custody, with no combination option, unlike joint custody. A parent with legal custody has the sole right to make decisions about long term plans, education, religious upbringing, discipline, medical care, and any other decision that may affect the child’s welfare. A parent with physical custody lives with the child and has the right to make decisions regarding the child’s everyday needs. In sole custody only one parent has both legal and physical custody, and the child only has one primary home.

 In Costa v. Costa, mother Sandra Costa appealed to the New Jersey Appellate Division to review her motion to terminate her ex-husband’s joint legal custody, which was denied by the Superior Court of New Jersey, Family Part, of Hudson County. Joint custody is comprised of three different subcategories, including: joint legal custody, shared physical custody, and a combination of the two. Joint legal custody is an arrangement where both parents share in the care of the child, and make decisions about the child’s welfare together. Shared physical custody is where the child has two homes, and spends at least 35% of his or her time with the other parent. Parents can also mutually agree to a special joint custody arrangement that is a combination of joint legal and shared physical custody. In a joint custody arrangement, it is vital for both parents to communicate, and make decisions that might affect the child’s welfare, together.

Sole custody on the other hand is comprised of only legal custody and physical custody, with no combination option, unlike joint custody. A parent with legal custody has the sole right to make decisions about long term plans, education, religious upbringing, discipline, medical care, and any other decision that may affect the child’s welfare. A parent with physical custody lives with the child and has the right to make decisions regarding the child’s everyday needs. In sole custody only one parent has both legal and physical custody, and the child only has one primary home.

Sandra’s motion was based on the fact that her ex-husband, Paulo, moved to Brazil and she encountered difficulties in trying to renew the children’s passports. The appellate panel held that while a parent moving to another county is usually a change of circumstance that warrants a physical custody modification, in this case it did not necessarily warrant a modification of the joint legal custody arrangement because technological advancements have made it possible for an oversees parent to be a joint decision-maker for major decisions concerning the child’s welfare. Moreover, complications in renewing passports, when the out of country parent has already consented to a court order that authorizes the domestic parent to get a passport, and authorizing the child for travel, does not justify a modification to joint legal custody.

Sandra and Paulo got married in 1994, and had two children together. They got a divorce in 2006 and mutually agreed to a property settlement agreement which was incorporated into the final judgment of divorce. According to the settlement agreement both parents were to share joint legal custody.

According to their property settlement agreement, Sandra got primary residential custody, and Paulo got visitation rights. The parents agreed to communicate with each other in regards to the health, education, welfare and other important matters that affected the children.  However, in 2009, Paulo moved to Sao Paulo, Brazil. He maintained contact with the kids through the telephone and computer, but he no longer exercised visitation with them. As a result, Sandra filed motion seeking sole legal custody of the children, in 2013.

Sandra contended that she needed Paulo to give her a notarized consent form and authorization before she could renew the children’s passports. She alleged that Paulo gave her incomplete paperwork because there were so few English speaking notaries in Brazil. She traveled to Brazil herself in 2012 but did not get the required consent form because of “procedural difficulties.” Sandra’s motion for sole legal custody was based on the fact that getting travel authorization from Paulo was too difficult, and placed an unreasonable obstacle on the kids’ ability to travel.

In response, Paulo alleged that he had supplied Sandra a travel authorization to permit her to renew their kids’ passports before moving to Brazil in 2009, and once more when Sandra traveled to Brazil in 2012. Upon learning from Sandra that the authorization was unacceptable because it was not properly filled out, he agreed to provide another one. However, he was worried that the only certified notary in his city would fail to properly prepare the paperwork again. Therefore, while responding to the motion, he gave the court authority to give Sandra permanent permission to renew the children’s passports so that they may travel wherever they may please, without any permission from him in the future. Paulo further requested to keep joint legal custody of the kids so that he could still be a part of the decisions in their life. He maintained consistent conversations with the kids through telephone and Facebook. He also tried to talk about matters with Sandra.

Judge Maureen P. Sogluizzo of Hudson County reviewed and denied Sandra’s motion for sole custody on September 18, 2013. The Family Part held that Sandra had failed to meet her burden of proving changed circumstances, or showing that the best interests of the children required sole custody. Sandra appealed to the New Jersey Appellate Division.

The New Jersey Appellate Division stated that modifying an existing child custody order requires two-steps. The first step is for the parent seeking modification to prove that circumstances have changed in a way that requires modification of the present custody arrangement. If the parent seeking modification manages to make that showing, then a hearing is required to settle the disputes of fact relating to the child’s best interests, and if those interests are best served by changing the present child custody order. The trial court found that Sandra did not meet the standard of proving changed circumstances, and therefore the denial of the motion without a hearing was warranted.

On appeal, a denial of a modification is reviewed on whether the Family Part abused its discretion. However, Family Part judges are given deference due to their special expertise in family matters. The New Jersey Appellate Division found that the Family Part judge did not abuse her discretion. Sandra did indeed fail to prove that circumstances had changed to the point where modification to sole legal custody from joint custody was warranted. While the parents did encounter significant obstacles in getting a valid authorization to permit the kids to renew their passports and travel outside the court, Paulo had cured that difficulty by authorizing the Family Part court to give the required authorization through court order. This type of order would be enough to solve Sandra’s passport difficulties. It would also protect Sandra from any claim that merely traveling out of the country with the children constitutes interference with custody, child kidnapping, or abduction.

Sandra also claimed that one parent moving to another country in of itself should be a change of circumstance that warrants a custody modification. The New Jersey Appellate Division noted that normally, such a move would be a valid change of circumstance for modifying physical custody because the geographic proximity of the parents’ houses is a very important factor. In this case, however, Sandra did not try to change physical custody, she already had full physical custody as a matter of fact. Joint legal custody on the other hand does not require both parents to live close to each other. Unlike physical custody, legal custody is merely the responsibility to make major decisions in relations the child’s welfare. This does not include minor day to day decisions. The purpose of joint legal custody is to maintain the bonds between parents and children by allowing both parents be decision makers in their children’s lives. Furthermore, modern advancements in technology had made it possible for the parents and children to communicate and preserve both parents as decision makers. As a result, the New Jersey Appellate Division affirmed the trial court’s decision to deny Sandra’s motion.

My office is here for you if you face a child custody situation with both parents residing in different states.