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