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

Is It Possible To Obtain Sole Custody After Joint Legal Custody Has Already Been Court Ordered?

As I discussed in my piece “In a New Jersey Divorce, What Does Joint Legal Custody Exactly Mean?” less than 5% of New Jersey Child Custody cases result in sole custody. Rather, the court typically will grant joint legal custody to the parties when children are involved. Simply put, joint legal custody means that both parents are “equal” as to major decisions regarding the children. Yet, what happens if one parent decides that he or she no longer wants to share legal custody? Will the court grant a motion to modify joint legal custody to sole custody? Typically, the answer to that is “no”, unless the child’s best interests would be better served by one parent having sole legal custody. The recently decided case of Costa v. Costa illustrates this scenario perfectly.          

In the case, the parties were married in 1994 and divorced in 2006. Two children were born of the marriage. Upon their divorce, the parties entered into a Property Settlement Agreement in which they agreed to share joint legal custody of their two children, with the mother having primary residential custody. Furthermore, the parties agreed to talk to one another to discuss education, health, welfare and other matters of importance that affected the children.

In 2009, the father moved to Sao Paolo, Brazil. Although hours away by plane, the father still maintained contact with his children via telephone and email; however, he stopped exercising his parenting time rights. In 2013, the mother filed a motion for sole legal custody. She stated that in order for her to travel out of the country with the children, she needed her ex to provide a notarized consent form. Additionally, she needed authorization to renew the children’s passports.  

The consent form was sent to the father for him to have notarized in Brazil. However, since the document was in English, the father had to hire a certified translator to notarize the consent form, a process that was tough and expensive. Since there were so few qualified translators in Sao Paolo, he told his ex that he was unable to obtain the notarization and returned the incomplete paperwork.

In 2012, the mother traveled to Brazil, but couldn’t get the consent form due to procedural difficulties. She stated that sole legal custody was imperative because the process of obtaining travel authorization from her ex-husband was “overly burdensome and placed unreasonable limitations on the minor children’s ability to travel and renew their travel documentation.” In response to this, the father stated that he gave his ex-wife a legal travel authorization to allow her to renew the children’s passports before he moved to Brazil in 2009 and also in 2012.

The mother informed the father that the authorization provided to her in 2012 was unacceptable because it was improperly filled out. Yet, when she informed him of this, he agreed to provide another authorization immediately. His only concern was that the only certified notary he had once used would prepare the document incorrectly once again.

Due to his concerns, the father expressly agreed that the court could give permission to his ex-wife to renew the children’s passports and for them to travel wherever they wanted to go without any future authorization from him. In addition to this express agreement, the father asked to keep joint legal custody of his children because he continued to play an active role in their lives, despite living in another country. He explained that he spoke with them regularly via telephone and Facebook and that he was still very much present in their lives.

In September 2013, the trial court denied the mother’s motion to modify the joint custody agreement. The court held that not only had she failed to show “changed circumstances”, but also she failed to demonstrate why joint legal custody was not in the best interests of the children. The mother appealed.

On appeal, the mother asserted that her ex’s relocation to Brazil constituted a change of circumstances, which warranted a change of custody. Yet the Appellate Division affirmed the findings of the lower court. The court stated that normally, relocation of one parent out of the country constitutes a change of circumstances for physical custody. However, since the mother was merely seeking to change legal custody, close physical proximity was irrelevant. The father was still maintaining contact with his children on a regular basis even though he now lived in Brazil.  

Additionally, the court reiterated the fact that the father expressly agreed that the family court could issue the requisite authorizations by court order. Given that fact, the order was sufficient enough to resolve the passport difficulties. The Appellate Division stated that “a passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if she 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 or custodial arrangements.”

Ultimately, the court stressed the importance of both parents having equal decision-making authority with respect to their children. The main takeaway from Costa is that the courts rarely grants sole legal custody in the first place, so unless sharing legal custody will negatively impact the children’s best interests, the court will not modify the custody arrangement. For more information on this area of the law, please contact my office today. Thank you.