To most people, custody refers to which parent the child lives with, but custody is actually a two part issue. There's residential custody, which refers to where the child lives. In most cases, one parent is awarded primary custody, meaning that the child lives with that parent for most of the week, month or year. Both parents, however, share legal custody, which allows them to participate in making decisions for the child's health, safety and welfare. This is very important in areas such as education, medical treatments and traveling overseas.
Travel is always a bit tricky, since many families go on vacations throughout the year. Some vacations are within the U.S. To places such as Disneyland. Permission from the other parent is normally not required in these cases, as long as it doesn't interfere with his or her visitation. While parents can include language in their parenting plan requiring permission for any kind of travel, most parents don't go that far. However, permission is needed for overseas travel, which can be difficult to obtain when parents live in different countries.
The dilemma of sharing joint legal custody was addressed in the 2015 case of Costa v. Costa. The mother in this case was living in New Jersey with the children, while the father lived in Brazil. He maintained regular contact with the children electronically, but there were no visitations since he had moved to Brazil. In 2012, the mother wanted to travel overseas with the children, but had difficulty reaching the father for permission. She filed for sole legal custody in 2013, citing that the distance between them “placed unreasonable limitations [on] the minor children's ability to travel and to renew their travel documentations.” The father disputed her claims, citing that he had given permanent permission to the mother to renew their children's passports and take them for travel as she saw fit.
Regardless of the real story, the court did not see this as a valid reason to take away the father's right to legal custody. The Appellate Division upheld the trial court's ruling that the mother had failed to meet the burden of proof required to show that joint legal custody was not in the children's best interest. To be more specific, they described custody modifications as a two step process. First, the filant must show a change in circumstance to warrant the requested modification. Second, it must be shown that the modification is in the children's best interests. The mother in Costa had failed to meet these terms according to the courts, thus there was no reason to award her sole legal custody. As you can see, the courts are extremely conservative when it comes to overriding one's parental rights. Thus, many parents should consider their rationale, and if the current arrangement is really hurting the children prior to filing a modification request. For more information on your custodial rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.