While divorce is the end of many wonderful and important aspects of your life, it can also be a new beginning for personal and professional opportunities. For individuals who had immigrated to the U.S., it may be an opportunity to re-establish themselves in their former country, after having gained additional education and job skills. Moving overseas, however, is an extremely difficult choice when you have children who are better off remaining in the U.S. This means that you will have to give over primary custody to your ex, and your face-to-face interactions with your children will undeniably be limited.
There are, of course, ways to stay involved in your children's lives. The internet and mobile devices make it easy to keep in constant contact, as well as having actual facetime with your children though apps like Skype and Google Hangouts. The right to contact your children and have a say in important decisions concerning their health and welfare are integral to your parental rights. These right are protected under New Jersey's custody and visitation laws, which give both parents “legal custody” over their children, regardless of who they live with.
Because legal custody is a rather subjective concept, there have been disputes over just how involved a parents needs to be in order to retain his or her legal custody rights. Take, for example, the case of Costa v. Costa, which was decided by the Appellate Division on January 2, 2015. In Costa, the plaintiff and defendant had agreed at the time of the divorce to have the mother assume primary custodianship of their two children. The father moved to Brazil several years later, but retained legal custodianship and maintained contact with his children though phone calls and the internet.
In 2012, the mother filed a motion for sole custody, advising that it was difficult to get in touch with the father for important decisions, such as obtaining travel authorization for the children. The father argued that he had given authorization for the children to travel prior to his relocation to Brazil, and in fact, had told her that she could take the children where she wanted at any given time. At that point, their claims were a matter of “he said, she said”, but the courts ruled that this was not the issue of importance. What mattered was the preservation of the father's legal custody rights, which should always be preserved unless there are changed circumstances to indicate that joint legal custody was not in the children's best interests. Both the trial and Appellate courts agreed that the mother had failed to show sufficient cause to deny the father his custodial rights.
Custodial rights are a complicated issue in any divorce, but there are laws to ensure that you can continue being a consistent and valuable presence in your children's lives. If you are an overseas parent who is facing a custody dispute, please consider speaking with the attorneys of Villani & DeLuca, P.C.