                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2078-13T4



SANDRA COSTA,                           APPROVED FOR PUBLICATION

     Plaintiff-Appellant,                     January 12, 2015

v.                                        APPELLATE DIVISION

PAULO A. COSTA,

     Defendant-Respondent.
_________________________________

          Submitted December 15, 2014 – Decided January 12, 2015

          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
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




                                       2                                 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."




                                                3                                     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 "'two-

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   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).




                                          4                                 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




                                                 5                                     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)


                                             6                                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).



                                         7                                 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




                                               8                                  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.




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