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A Non-Custodial Parent's Relocation is Not Grounds to Modify Legal Custody

When a non-custodial parent relocates out of the state or the country, the likelihood is the parenting time schedule will be modified to accommodate the new location. Whether the legal custodial arrangement will change is not as certain. In the case of Costa v. Costa, ___ N.J. Super. _____, _____, (App. Div. 2015) (slip. op.), the custodial parent, Ms. Costa, sought sole legal custody due to difficulties in obtaining the necessary paperwork for the parties' children to travel abroad from the non-custodial parent, Mr. Costa, following his relocation to Brazil. Mr. Costa had no issue with the children traveling abroad and authorized the Court to issue any Order necessary to make this a reality but opposed a modification of the joint legal custody arrangement.

In affirming the trial court's denial of the request to modify legal custody, the Appellate Division expressly rejected the argument that "a parent's relocation to another country itself constitutes a change of circumstances warranting a change of custody." Id. While this may be accurate in terms of physical custody, the Costa Court explained that "joint legal custody does not necessarily require the parents to be in close proximity." Furthermore, given the modern technologies such as telephonic and electronic contact, distance has become virtually irrelevant.

As an aside, the Appellate Division did not consider Ms. Costa's argument regarding the difficulties she has encountered in communicating with Mr. Costa via telephone and electronically because these facts were not raised in her initial motion. Id. Thus, whether this is the last we will hear from Ms. Costa in pursuit of her request for sole legal custody remains to be seen.

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