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Modification After Parental Relocation

When parents share custody of their children, many of the decisions they make in their personal lives may affect their children and their custody arrangement. Here, we will look at how New Jersey deals with an international move by one parent, and whether it may or may not alter the joint legal custody of that parent’s children. If you facing such a situation, you should consult with an experienced NJ child custody lawyer.    

Costa v. Costa (2015)

The parties in Costa married in 1994 and had two children. They divorced in 2006. They agreed to joint legal custody of the children, with the Plaintiff (the former wife) having primary residential custody, while the Defendant (the former husband) having visitation. The parties further agreed to consult one another on issues regarding education, health, welfare, and other important matters affecting the children. In 2009, the Defendant moved to Brazil, at which time he stopped physically visiting the children but stayed in contact via phone and Internet communication.

At trial in 2013, the Plaintiff sought sole legal custody of the children, alleging difficulties in obtaining necessary consent forms from Defendant. Specifically, in order to renew the children’s passports she needed Defendant to complete and have notarized a consent form, which was in English. Defendant had difficulty in having the form notarized since it was in English, and access to translators was limited in his small town in Brazil. Noting the difficulty in giving this form, the Defendant expressly agreed to give Plaintiff permanent permission to renew the passports and to travel without any future authorization required by him.

At trial, the court disagreed with the plaintiff, holding that she did not show a change in circumstances that demonstrated a need for a modification of legal custody. The plaintiff appealed. The appeals court agreed with the trial court that the Plaintiff did not show sufficient changed circumstances warranting modification of the joint legal custody award.

Physical vs. Legal Custody - Modification Based on Relocation

The Plaintiff alleged that the Defendant’s relocation outside the country itself was a sufficient change of circumstances. The court disagreed. Changed geographical location is an important factor in joint physical custody of the children, and a move to a different country likely constitutes changed circumstances warranting discussion of modification of child custody. However, such a move does not affect legal custody, because legal custody only involves making joint decisions about the children, which can be done on the phone or through email, regardless of the geographic location of the parents.

The court further noted that the Defendant’s suggestion of providing authorization to renew passports would alleviate the problem with travel that the plaintiff alleged was the cause of the need to change custody.

If you share custody of your children and either you or your co-parent decides to move, your child custody may be affected. It is important to contemplate the possible repercussions of your move well in advance of moving day if at all possible. Please call the Law Offices of Peter Van Aulen for a consultation to discuss your case with a NJ child custody lawyer.


Costa v. Costa, 440 NJ Super. 1 (App. Div. 2015)

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