A Boy in Brazil
An American father’s plight illuminates a gap in international law
Monday, April 6, 2009
MONG THE many remarkable consequences of globalization is the increasing number of binational couples with children. But there is a downside: Sometimes, a relationship sours, and one partner goes home, taking a child without the other partner’s consent. The Hague Convention on the Civil Aspects of International Child Abduction, which took effect in 1983 and has 81 signatories, addresses this problem. The treaty requires courts in the receiving country to send children back to their countries of "habitual residence," where all custody issues are to be litigated. The treaty allows exceptions only in extraordinary situations. Executive authorities in signatory countries are supposed to help victimized parents.
For the most part, the United States and other signatories have followed the treaty. In fiscal 2007, the United States returned 262 children to signatory countries and welcomed back 217 children. Nevertheless, the State Department designates one country — Honduras — as "not compliant" and nine others as "demonstrating patterns of non-compliance."
The biggest country in the latter category is Brazil, whence 50 American parents are trying to retrieve their children. Brazil entered into its mutual obligation with the United States only in 2003, so some of the trouble reflects bureaucratic start-up problems and judges’ unfamiliarity with the law.
But there is no good excuse for what has happened to David Goldman, a 42-year-old New Jersey man whose ex-wife absconded to her native Brazil with the couple’s then-4-year-old son, Sean, in 2004. Mr. Goldman immediately sought the boy’s return. In 2005, a Brazilian federal court held that the boy had indeed been wrongly taken and that a U.S. court should decide custody — but that too much time had gone by so he would be better off with the mother in Rio de Janeiro. This was strange: Legal machinations by the mother and her new husband, a well-connected Brazilian lawyer, had caused the delay. And since the mother’s death last year, even that threadbare argument has lost force — but the boy’s stepfather and Brazilian relatives insist that he remain with them. Mr. Goldman and his attorneys are pressing their claim, and a new ruling is expected soon.
No custody battle is pretty, and this one has been especially ugly, with the Brazilian family attacking Mr. Goldman’s reputation both in court and in the local media. Quite correctly, Secretary of State Hillary Rodham Clinton and other U.S. officials have raised the matter with Brazil’s government — which has not been unsympathetic. But this is a matter for the independent judiciary in Brazil. It must uphold the law, regardless of either diplomatic pressure from the United States or the noisy publicity campaign by the boy’s Brazilian family. If the court in Brazil does what the treaty requires, it will send Mr. Goldman’s son back to his sole surviving biological parent, speeding the resolution of a family tragedy, enhancing Brazil’s reputation — and setting a law-abiding example for other countries.