NOT FOR PUBLICATION WITHOUT THE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 Firm, LLC, attorneys for 

appellant (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. Costa's joint legal custody over 

their children. Plaintiff sought termination due to 

APPROVED FOR PUBLICATION

January 12, 2015

APPELLATE DIVISION

January 12, 2015
2 A-2078-13T4

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, they 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 custody, and defendant 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 city 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 them. 

In 2013, plaintiff filed a motion for sole legal custody. 

She alleged the following. In order to travel abroad with the 

children, she needed defendant to provide a notarized consent 

form and authorization 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 such
3 A-2078-13T4

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 

[on] 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 moved 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. However, he was concerned that the only 

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 travel to where they want without any future 

authorization from me." 
4 A-2078-13T4

Defendant asked to retain joint legal custody of the 

children to continue to be involved in decisions for their best 

interests. He stated that he had regular conversations with the 

children by telephone and Facebook, and that he tried discussing 

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.

Modification of an existing child custody order is a "'twostep 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 circumstances 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 existing custody order.'" Id. at 62-63 (citation omitted).
5 A-2078-13T4

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 must 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 parties 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, both parents must execute an 

application for issuance or renewal of a passport for a minor 

under age sixteen. 22 C.F.R. § 51.28(a)(2), (a)(3)(ii)(G), 

(c)(2) (2014). However, "[a] passport application may be 

executed on behalf of a minor under age 16 by only one parent or 
6 A-2078-13T4

legal guardian if such 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 of custodial arrangements; or specifically 

authorizing the travel of the minor with the applying parent or 

legal guardian." 22 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 defendant'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 United 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)
7 A-2078-13T4

Similarly, Brazil does not require such documentation for minor 

citizens of the United States, although the United States 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 and obtaining such an order.

Plaintiff asserts a parent's relocation to another country 

itself constitutes a change of circumstances warranting a change 

of custody. Such relocation normally constitutes a change of 

circumstances for physical custody, for which "[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 law.

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).
8 A-2078-13T4

'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 their 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. 

Plaintiff'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 communications 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 unable 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 assertions appear in 

plaintiff's motion certification, which focused on her need to 

obtain travel authorization from defendant. Plaintiff cannot 
9 A-2078-13T4

ask us to overturn the trial court's ruling based on factual 

assertions she never presented to that court, particularly as 

those assertions are contested by defendant. 

Affirmed.