NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 2078
- 13T4

SANDRA COSTA, Plaintiff
- Appellant,

v. PAULO A. COSTA, Defendant
- Respondent.

_________________________________

Submitted December 15, 2014

– Decided Before Judges Sabatino, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM
- 09
- 1139
- 06. Mignone Lazaro Law Fir m, LLC, attorneys for appe llant (Anita Mignone
- Lazaro, of counsel and on the brief). Paulo André da Silva Costa, respondent pro se. The opinion of the court was delivered by LEONE, J.A.D. Plaintiff Sandra Costa appeals the denial of her motion to terminate defendant Paulo A. C osta's joint legal custody over their children . Plaintiff sought termination due to APPROVED FOR PUBLICATION January 12, 2015
APPELLATE DIVISION

January 12, 2015A - 2078
- 13T4 2 difficulties in obtaining the appropriate forms to allow the children to visit her parents in Brazil . We affirm.
I. The parties were married in 1994 . They had two children in
1997 and 2000. In 2006, t hey received a judgment of divorce . In their Property Settlement Agreement (PSA), the parties agreed they would share joint legal custody of the children. Plaintiff received primary residential cus t o dy , and defe ndant received visitation rights. The parties agreed to consult one another regarding education, health, welfare, and other matters of similar importance affecting the children. In 2009, defendant moved to the c ity of Tremembé, in the State of São Paulo, Brazil. Defendant maintains telephonic and electronic contact with the children, but he no longer exercises visitation with the m . In 2013, plaintiff filed a motion for sole legal custody . She alleged the follow ing . In order to travel abroad with the
ch ildren, she needed defendant to provide a notarized consent form and authori zation to renew their passports . As the form was in English, defendant had to obtain notarization from a certified translator in Brazil, "a process which is difficult and costly." Defendant told plaintiff he was unable to obtain notarization because of the limited availability of suchA - 2078
- 13T4 3 notaries in his city . Defendant returned the paperwork incomplete . In 2012, plaintiff traveled to Brazil , but was not able to obtain the consent form "due to procedural difficulties." Plaintiff 's motion sought "sole legal custody as the process of obtaining travel authorization from [d] efendant is overly burdensome and has placed unreasonable limitations [o n ] the minor children's ability to travel and to renew their travel documentation." Defendant's response to the motion alleged as follows. He had given plaintiff a legal travel authorization to allow plaintiff to renew the children's passports before he m oved to Brazil in 2009, and again when plaintiff traveled to Brazil in
2012 . When she told him the 2012 authorization was not accepted because it was improperly filled out, he agreed to provide
another authorization . H owever, he was concerned that the on ly certified notary in his city would again prepare it improperly . Thus, in his response to the motion, defendant expressly "agree[d] that this [c] ourt give permanent permission to the [p] laintiff to renew the passports of [the children] and for
them to t ravel to where they want without any future authorization from me."A - 2078
- 13T4 4 Defendant asked to retain joint legal custody of the children to continue to be involved in decisions for their best interest s . He stated that he had regular conversations with the children by telephone and Facebook, and that he tried discuss i ng matters with plaintiff. On September 18, 2013, Presiding Judge Maureen P. Sogluizzo considered and denied plaintiff's motion on the papers. The
court ruled that plaintiff had not met her burden to show a change of circumstances, or to demonstrate that joint legal custody was not in the best interests of the children. Plaintiff appeals.
II.
M odification of an existing c hild c ustody order is a "'tw o step process.'" R.K. v. F.K. , 437 N.J. Super. 58, 62 (App. Div. 2014) (quoting Crews v. Crews , 164 N.J. 11, 28 (2000)). First, a party must show "a change of circum stances warranting modification " of the custodial arrangements. Id. at 63 ( quoting
Beck v. Beck , 86 N.J. 480, 496 n.8 (1981)). If the party makes that showing, the party is "'entitled to a plenary hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of
the ex isting custody order.'" Id. at 62
- 63 (citation omitted).A - 2078
- 13T4 5 Here, the trial court ruled that plaintiff failed to "'meet the threshold standard of changed circumstances'" and thus denied the motion without a plenary hearing. Id. at 62 (quoting
J.B. v. W.B. , 215 N.J. 305, 327 (2013)). Such a denial is reviewed for abuse of discretion, with deference to the expertise of Family Part judges. Hand v. Hand , 391 N.J. Super. 102, 111
- 12 (App. Div. 2007) (citing Cesare v. Cesare , 154 N.J. 394, 413 (1998)). We mus t hew to that standard of review. The trial court did not abuse its discretion in denying plaintiff's motion without a plenary hearing. Plaintiff failed to show a change of circumstances warranting modification from joint to sole legal custody. The parti es have encountered regrettable difficulties in obtaining a valid authorization to allow the children to renew their passports and to travel out of the United States. However, defendant has now expressly agreed in his motion response that the family court may issue the requisite authorizations by court order. Such an order should be sufficient to solve the passport difficulties. Normally, b oth parents must execute an application for issuance or renewal of a passport for a minor under age sixteen. 2 2 C. F.R. § 51.28(a)(2) , (a) (3)(i i )(G) , (c)(2) (2014) . However, "[a] passport application may be executed on behalf of a minor under age 16 by only one parent orA - 2078
- 13T4 6 legal guardian if such person provides" an order of a court of competent jurisdiction "specificall y 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 app lying parent or legal guardian." 2 2 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 ). Such an order, based on d efendant's agreement, should also protect plaintiff from any accusation that simply traveling abroad with the children constitutes an interference with custody , N.J.S.A. 2C:13
- 4(c)(2), child kidnapping, 18 U.S.C.A. § 1204(c)(1), or child abduction, 22 U.S. C.A. § 9101(2); see Hague Convention on the Civil Aspects of International Child Abduction , Art. 3(a). In any event, though the U nited States Customs and Border Protection website recommends that a child traveling with one parent have a letter , preferably notarized, signed by the other parent acknowledging that the other parent has given permission for the child to travel out of the country, the United States "does not require this documentation." 1

1 U.S. Customs and Border Protection, Children
- Child traveling with one parent or someone who is not a parent or legal guardian (continued)A - 2078
- 13T4 7 Similarly, Brazil does not require such documentation for minor citizens of the United States , although the U nited S tates State Department recommends it. 2 Plaintiff's motion did not request such an order. However, nothing in the trial court's order or in our decision precludes plaintiff from moving for an d obtaining such an order. Plaintiff asserts a parent's relocation to another country itself constitutes a change of circumstances warranting a change of custody. S uch relocation normally constitute s a change of circumstances for physical custody , for whi ch "[t]he geographical proximity of the two [parents'] homes is an important factor . " Beck , supra , 86 N.J. at 500. However, plaintiff does not seek to change physical custody, presumably
because she has full physical custody as a matter of fact , if
not l aw . By contrast , joint legal custody does not necessarily require the parents to be in close physical proximity. Legal custody is "the legal authority and responsibility for making
(continued) or a group , https ://help.cbp.gov/app/answers/detail/a_id/268/kw/ travelling%20children%20of%20divorced%20parents/session/L3RpbWUv MTQxOTk2OTE0NC9zaWQvMmE4djNkYm0%3D/suggested/1 (last updated July 7, 2014 ).

2 U.S. Dep't of State, U.S. Passports & International Travel , Brazil , http://travel.state.gov/content/passports/english/ country/brazil.html (last updated Oct. 14 , 2014).A - 2078
- 13T4 8 'major' decisions regarding the child's welfare," not "'minor' day
- to - day decisions." Id. at 487. Joint legal custody "seeks to maintain [ the ] attachments [between parents and child] by permitting both parents to remain decision
- makers in the lives
of th eir children." Ibid. Even if physical custody is not possible due to geographic separation, modern telephonic and electronic communications can enable effective joint legal custody and "preserve the decision
- making role of both parents."
Id. at 500.
P laintiff's appellate brief asserts that since relocating to Brazil, defendant has failed to communicate with plaintiff in any meaningful way regarding decisions as to the children' s health, safety, and education. Plaintiff also asserts that telephonic com

munications are difficult and sporadic, and that
defendant mostly ignores her attempts to communicate electronically . She asserts that she is largely unable to reach defendant to make such decisions in a reasonable period of time, and that she might be un able to make major decisions in an
emergency . Thus , she asserts joint legal custody imposes an unreasonable burden on her and emotional harm on the children. However, none of those factual a ssertions appear in plaintiff's motion certification, which focus ed on her need to obtain travel authorization from defendant. Plaintiff cannotA - 2078
- 13T4 9 ask us to overturn the trial court's ruling based on factual

a ssertions she never presented to that court , particularly as those assertions are contested by defendant . Affirm ed.