Another Questionable Court Decision, Dec 15

The following article was published in Consultor Jurídico Magazine on December 15 and relates to a recent development in the case in which the STJ Judge, Minister Luis Felipe Salomão, has recommended a mediation hearing between David and João Paulo Lins e Silva. As far as we are aware, there has never before been a similar ruling in a conflict of jurisdiction case and the fact that the State Family Court was appointed to deal with urgent matters rather than the Federal Court is also a first, as far as we know. We are still trying to make some sense of this ruling but it is not easy.

 

Paternity in Question

Custody Dispute Headed toward Mediation, STJ has ruled

Translated by William Frank

 

The Supreme Court of Justice has decided to call for a mediation hearing between an American Father and a Brazilian Step-Father who are fighting over custody of an eight year-old child. The case has been ongoing since 2004, when the Brazilian mother left the United States of America with the child, without authorization from the biological father. The special hearing would occur in February, 2009.

 

Under the Brazilian judicial system the mother was awarded full custody of the boy, but died last August. This occurrence opened a new dispute. This time between the biological father and the step-father, who requests the recognition of his socio-affective paternity.

 

The STJ 2o. Section accepted the request from Minister Luíz Felipe Salomão to postpone for 60 days all petitions pending under the State Court and Federal Court to decide the custody of the child. Therefore, any urgent matters will be decided by the State Family Court before which the step-father has requested the custody of his step-son. This Court has denied a request from the American father to visit the child.

 

Under the Federal Court, there is a petition requesting return of the child in favor of the American, which was initiated by the Federal Government, based on the Hague Convention regarding the Civil Aspects of International Child Abduction. This court has given the American authorization to visit his son, but the visitation never occurred.

 

Because of the conflict between the decisions, the American filed a Conflict of Jurisdiction at STJ, to decide which court should be responsible for the case. The final ruling has not been decided yet by the 2o. Section, however the Judge Panel authorized the Main Judge (Luiz Felipe Salomão) to call for a mediation hearing between the fathers – the biological and the socio-affective one. The Brazilian Civil Code (Article 125) establishes that a Judge may try to reconcile the parties at any time during a case.

 

Consultor Jurídico Magazine, December 15, 2008

Story link: http://www.conjur.com.br/static/text/72646,1

Related Blog: http://umpouquinditudo.blogspot.com/2008/12/sean-uma-criana-norte-americana-em.html

 

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20 Responses to “Another Questionable Court Decision, Dec 15”

  1. Veronica says:

    More delay tactics from the Brazilian Courts – shame on them (again). It is pathetic that a biological father cannot see, speak or have any access to his own son – it’s unfathomable.

    Also, it is very disturbing that Joao Paulo Lins e Silva is referred to as the step-father; he is so not worthy of being called anything except a piece of garbage.

    What will it take for someone to step up and make this right. Why would any man want to raise someone else’s child – according to court records, Joao Paulo has been in Sean’s life for only about two years. I find that very, very strange…..

  2. emr432 says:

    This is unbelievable! And WHY is our government not more active in their efforts to stop this? The emails and the phone calls must continue. We need to drive them to the point where they will act, and not just say they are acting.

    So the article reads, “but the visitation never occured”. How about telling the public WHY the visitation never occured!!!

  3. lisacallenwood says:

    Things just get more bizarre by the day. “Socio-affective” father?? Are you kidding me?? There is a REASON I’ve never heard this terminology before regarding a custody dispute – because the Brazilian Courts are pulling EVERY trick out of their bag at the urging of JP. Either there is a lot of ‘palm greasing’ going on between the courts and JP, or the courts have no regard to their obligation to uphold international law – or both. Wow…..what a joke.

    Hang in their David. I know you want your son home more than anything in the world. The day will come.

    The question is, who will pull the plug on these clowns?? Is there nobody out there with the clout and chutzpah?? Come on!!!

  4. JamesJosephs says:

    Criminal charges should be filed in the United States against JPLS prior to this hearing.

  5. Mom25 says:

    oh my!!!!!! I am OUTRAGED!!!!!!!!!! how can this be!???
    For how long will the US OFFICIALS allow this????????????? I mean…. the decisions being taken in BR are WRONG, the bio-dad MUST see his child… what the heck…. I was angry once, but this….. this is making me sick now… How can there be a MEDIATION between a BIO WELL ALIVE DAD and a 18-month-period STEP DAD at this point??!

    aiiiii…. I am mad.

  6. tenorplus says:

    THIS IS DISGUSTING!!!!!!!! What a travesty and mockery of truth, ethics, true morals and justice!! This decision laughs in the face of every signatory country to the Hague Convention… when and how will it stop. We MUST continue to exert pressure and publicity on government officials in the USA and Brazil… constantly bring it to the forefront of all people in the USA, Brazil and globally… and pray that someone with the power to stop these rogues will rise and command what must be done – SEAN MUST BE RETURNED TO DAVID – NO QUESTION!!!!!! People of Brazil – please pass the word to everyone you can. This is not about you ~ it is about corruption in the justice system and governmental structures. The Lins e Silva family MUST be shut off -boycott any of their business interests and law firm, as well as cut them off from any and all international legal involvements. Their mere involvement make all these matters a joke!!! There is NO HONOUR in the Lins e Silva family. There should not be any “meeting” between David and these indivduals… the Hague Convention is clear – and this is ONLY a Federal matter. The State (in Brazil) did not sign this on behalf of the nation – the Federal government did. STOP the delay tactics and playing around.

    David – PLEASE take heart! We are here to encourage and support you and this battle. Ultimately, you bring MUCH HONOUR to Sean and your family… they (Lins e Silva) bring much dishonour to Sean… their own family… Brazil… and the upholding od the Hague Convention Treaty!!!!!! Hang in there… look to a brighter future, which we pray will be soon… we’re with you every step of the way!!!!!!!!!!!!!!!!!!

  7. LukieD says:

    One need look no further than the title of the article: “Paternity in Question”. According to whom? How can the paternity ever be in question when the biological father, David Goldman, has been fighting for over four years to bring his son home from Brazil? One is a fit father and the other a kidnapper. These judges (and journalists) make a mockery of the word “paternity”. Look it up in the dictionary for goodness sake; it only has one meaning: BIOLOGICAL FATHER. And honestly, this concept of “socio-affective paternity” is beyond laughable. Let me explain what this term means in layman’s language. It means that if you “inherit” a kidnapped child because you were dumb enough to fall in love with a client, who happens to be a child abductor, and you take care of that kidnapped child long enough, eventually you deserve to keep this child because it would be too traumatic to send him home to his real father despite the fact that a crime has been committed and the REAL father had his heart ripped out of his chest when his son was stolen from him. So it’s open season for kidnappers in Brazil. What’s to stop anyone from kidnapping a child anywhere in the world and bringing that child to Brazil? If you have influence and know the judges, like the Lins e Silvas do, it’s a safe haven.

    And I agree, nice of the author to say that the Federal Court gave David the right to visit Sean “but it did not occur”. Does the author fear a lawsuit from Lins e Silva if he tells the reader WHY the visitation did not occur? Let me help him finish the sentence: “the visitation did not occur because the new husband of Bruna of 18 months (NOTE: he’s not a step-father because his wife never divorced the father of her child in the country where they married), the coward João Paulo Lins e Silva, skipped town on the morning of October 18, claiming that he was ‘unaware’ of the visitation despite the fact that he had the presence of mind to file a last minute appeal at the court the evening before to block the visitation after he was certain Mr. Goldman was indeed going to show up for the scheduled visit with his son.”

    The Brazilian government should be embarrassed by these last two court rulings as well as the string of incredibly unlawful decisions over the past 4+ years. They have gone on record with the media saying nothing should prevent David from being reunited with Sean and “we stand by the application of the Hague Convention, which gives Mr Goldman custody”, a statement they gave to ABC News last week. Well HELLO BRAZILIAN GOVERNMENT, it’s nice that you feel so strongly about this case but what do you plan to do about these rogue judges who ignore the laws they’ve been sworn to uphold and act with impunity? If the Lins e Silvas can manipulate these judges, you cannot convince me that someone in the Brazilian government isn’t capable of placing a phone call to Judge Salomão and his friends telling them to knock it off, get in line, and FOLLOW THE LAW FOR A CHANGE.

  8. rlw.mom says:

    Here is STJ Judge, Minister Luis Felipe Salomão’s personal website.
    Click on “Fale Conosco” and then you can send him an e-mail.

    http://www.salomao.stj.jus.br/webstj/gabinete/default.asp?id_gab=18

    If you are like me, I think today is the perfect time to write Judge Salomão (again) and let him know (respectfully, of course) how we feel. This case is becoming beyond outrageous!

  9. Irish17 says:

    rlw.mom thank you for the web site to this judge. I just sent him a note about how I feel and explained a few things about the case. I was respectful yet stern.
    I hope this guy has an awful holiday! This is just so upsetting!!

  10. sara says:

    Judge Salomao, we have researched your passed decisions and found out that in the past, you have decided the FEDERAL court decides cases when the Brazilian Government filed the suit. Why in this case are you attemting to go into the merits of the case? It is interesting that you were a recently a Rio State court jduge. If you were truly judge who has honor and dignity, you would be objective and non bias. If you feel the need to look the merits of this case, (which is not the filings in front of you) your actions would be in complete contrast to what they are now. It is simple even in the custody laws in Brazil. Sean needs to be with his father David. Are you attempting to rewrite the entire Brazilian laws on custody for Lins e Silva and the Ribeiros? We will never stop in the pursuit of the law and reunite Sean and David. For you to say it is not an urgent matter for a father and son to be reunited immediately is a discrace! You should be in complete shame! You have allowed the Lins e Silva’s and the Ribeiro’s to soil you name along with their own. But, you sir are dragging the image your country down as well.
    Sara

  11. BillF says:

    There is also a fantastic article on Brazzil Magazine Website about the case and the impact of our efforts.
    We are REALLY helping David and we must increase the workload and, as a consequence, pressure on everyone responsible for fixing this issue (in Brazil and USA).

    http://www.brazzilmag.com/content/view/10397/

  12. LukieD says:

    can someone in Brazil call the State Court in Rio to ask why their email address isn’t working? Perhaps they can give us a new email address to use, or fix the one they publish below. i think it’s important they hear from us about this case.

    State Court of Rio de Janeiro
    Comissão Estadual Judiciária de Adoção do Estado do RIO DE JANEIRO
    President: High Court Judge Thiago Ribas Filho
    Phone: (011) 21 3133-2656 / 2542 / 4040
    Fax: (011) 21 3133-2657 / 2210
    Email: ceja@tj.rj.gov.br

  13. Evadc says:

    LukieD,I’m trying to get the new email address in RJ.I have friends who are trying to spread the word about David’s case, as I have mentioned in my emails.
    This whole thing is despicable and we just have to keep on giving David some comfort,letting him know that WE WILL NOT REST until he has Sean back.
    Every one of David’s friends here on the website, please DO NOT let the news bring us down and give up fighting for justice,ok?Lets flood emails accounts in Brazilian court with our thoughts and for the Orkut users, lets make the community in there more obvious and spread the word in your Orkut profiles.Guess who has been checking my profile page in there?JPLS himself!
    Keep strong, David,together we’re heavier than the LS family lack of morals.

  14. ella.h says:

    I’ve e-mailed Jay Severin from 96.9FM WTKK Boston’s talk revolution. He’s influential and has a wide base of followers many of whom are intelligent with potentially helpful careers. The radio show covers all important news, political and others. I also directed them to this website.
    He can be contacted at wtkk.com

  15. Marciaevnf says:

    Hello,

    I’ve just known about this case. I’m from Rio de Janeiro, Brasil, and I’m completely ashamed of being so.
    Our justice system is that much os a laugh, whoever has mone and ‘power’ has everything.
    Once Bruna died, it was widely noticed allover here, but I could die without knowing about Sean and this whole issue! Of course, they didn’t care to say anything else about her life, except all the good things and how powerfull her family is.
    I don’t know how I could help in any way, I sent out the e-mails, signed the petition, but still feels like so little.
    All the papers here in Brazil that tried to notice the story, were later notified by the Lins e Silva about law suits and other things. So it’s very hard to let the population know, other than the internet.
    If there’s anything I can do to help, feel free.
    I’m hoping everyhitng turns the right way, and Sean gets back home soon enough.
    I’m so sorry for that joke of a justice system…

  16. LukieD says:

    Just a quick note to say Merry Christmas, Happy Holidays and Best wishes for 2009 to all of you supporting David’s efforts to bring Sean home. Let’s make a New year’s resolution that we will not rest until Sean comes home to the US and let’s stay committed to making this happen in 2009 so this is the last holiday season that father and son are apart.

  17. RalphJ says:

    LukieD…sent you an e-mail on the 24th. Please read.

    VERY interesting story here.

    [b]Maryland Woman Arrested in Mexico 10 Years After Kidnapping 4-Year-Old Son[/b]
    http://www.foxnews.com/story/0,2933,472946,00.html

    HOUSTON — A Maryland woman who fled 10 years ago with her son to Mexico after a custody dispute has been arrested and flown back to the United States, officials said.

    Tamara Kennedy, a U.S. citizen and her now 14-year-old son, Joseph Alexander Kennedy, disappeared from Maryland in 1998, shortly before sole custody of the boy was to be given to the child’s father, said Immigration and Customs Enforcement spokeswoman Brandon A. Montgomery.

    Kennedy was found while trying to renew passports for herself and her son at the U.S. Consulate in Guadalajara, the Houston Chronicle reported Thursday.

    Kennedy was turned over to Mexican immigration officials for being in the country illegally on Tuesday. Mexican immigration officials then turned Kennedy and her son over to ICE’s custody, and the pair flew to Houston on Wednesday to be interviewed by federal authorities.

    ICE officials are still questioning Kennedy, Montgomery said, adding she did not know whether any charges have yet been filed.

    In 2007, Maryland State Police requested assistance from ICE, which obtained a federal warrant on Kennedy for knowingly removing a child from the U.S. with intent to obstruct parental rights, Montgomery said.(THIS IS VERY INTERESTING!)

    The boy’s father, Donald Wiswell, came to Houston on Wednesday in hopes of being reunited with his son.

    But Child Protective Services officials will keep the boy in custody until the investigation is completed.

    “In cases like this, there have been many years of separation, and there may be allegations by the parent who fled with him that we need to look at before reuniting to make sure the transition is smooth and the child is safe,” said Houston CPS spokeswoman Estella Olguin.

    The boy will be placed in foster care and a custody hearing is scheduled for Monday, Olguin said.

    *For those that don’t know, the Brazilian gov’t. has allowed hundreds, if not a thousand or more, agents of the department of Homeland Security to operate in Brazil in the tri-border region of Argentina, Brazil, and Paraguay. I’m sure we have an ICE agent or two there as well.

    *my comments

  18. suregirl4ever says:

    Dear Condoleeza Rice, our governmental staff and others who care:

    With all due respect I am writing in support of David Goldman’s desperate pleas for our country’s governmental agencies to help bring David’s beloved son Sean home to our Jersey shore from Brazil. David is doing all that any loving father could ever do as a human being to reconnect with his young son but he needs your help as he cannot do this on his own without intervention and continued pressure from our governnment to impose sanctions on Brazil if necessary. Help him please – with all your resources and God’s prayers to bring him home safely to his Daddy.
    My heart goes out to David and others like him who are separated unwittingly under false pretenses who suffer every second of every day yearning for their children to be returned to their biological parents. This is a daily horror story for David and his son in the wake of the losses that Sean has had to deal with. I am keeping the faith that we will not allow it to continue even if it is beyond our shores. We cannot stand by and do nothing. Please keep us posted for what is the next step to give us some hope that you will not let us down. Good night sweet Sean and Gob Bless the Goldman family to stay strong.

    I will never stop thinking about David’s love for his son and how much he and Sean need your support. What else can I do to help – please tell me?

    Thank you,

    Sue Ayers

  19. cjs30 says:

    I’m an American who owned a business in Brazil. I was involved in a case in which this judge presided. The man is a pompous idiot like al Brazilian judges. They have HUGE salaries and work as little as possible and are treated like royalty there. Unlike American judges, Brazilian judges have NO legal experience upon assuming the bench. You only have to pass a test there to become a judge. No experience required. The test involves memorizing the absurdly byzantine legal code which is layer upon layer of contradicting laws. Only rich kids can afford to spend years memorizing this dribble.

    A law degree in Brazil is only an undergraduate degree. And, Brazil does not have one university that ranks in the top 200 universities in the world, however, these little monkeys insist on being called “doctor”. I cannot imagine how I’d feel if my son’s fate were to be determined by these little retards.

    I think everyone should go to the site http://www.paulolinsesilva.com.br/ and send emails to these third world dirt bags telling them they’re party to a kidnappiing.

  20. marusya says:

    There is something wrong with this story. How can anyone make a judgement when you hear only one side of the story? Why the father of the boy accepted $100,000 from his ex-wife’s family before? There was a deal? What was the deal? Did he ever pay child support? Would he fight for the boy if his ex-wife’s family would be poor? Why he accepts donations on his web-site? This story has to do a lot with money. I don’t believe the guy.




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