Justice for Stolen Kids
Sean Goldman is back with his father, but we must do more to resolve other tragic cases
By Peter J. Messitte
January 7, 2010
avid Goldman will tell the world Friday on network TV about the happy ending to his heroic, five-year custody battle to retrieve his son from Brazil. Nine-year-old Sean captured the world’s attention much the way that Elian Gonzalez did a decade ago. Like Elian’s eventual return to his real father in Cuba, Sean is now back with his real father in New Jersey. It’s a story that could have turned out differently.
When Sean’s Brazilian mother left with him for Rio de Janeiro, then wrongfully detained him there five years ago (later divorcing his American father, remarrying a Brazilian and tragically dying in childbirth), she triggered Brazil’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction. Brazil – like the United States, a signatory to the convention – was obliged to send the child back to his habitual residence (clearly New Jersey), where the courts of that state would decide the issues of custody and visitation. It took almost five years, numerous court proceedings, and eventually protests from Congress, Secretary of State Hillary Clinton and President Barack Obama, but – with Sean’s father showing remarkable restraint and deep respect for legal process – the system finally worked.
However, five years is far too long. The presumptive time for return of a child under the convention is six weeks. Hundreds of other children of left-behind American parents are being wrongfully detained in foreign countries (Brazil among them), in many cases going on months and even years. For these parents, the anguish continues.
Legislation recently introduced by Rep. Chris Smith, a New Jersey Republican, attempts to put real teeth in the Hague Convention’s weak enforcement mechanisms. Among other things, the proposed legislation would create an assistant secretary of state who would report regularly to the president on which countries are complying with the convention and which are not, suggesting sanctions that might be imposed against noncompliant signatories where appropriate. In the Goldman case, U.S. Senator Frank Lautenberg, Democrat of New Jersey, eventually put a hold on all trade preferences with Brazil until its courts did what they were supposed to do under the convention. Quite possibly, that was enough to tip the scales.
But there are also some quieter efforts under way to improve the mechanisms that can lead to the return of wrongfully abducted children to their rightful homes. The International Hague Network of Judges links judges around the world by encouraging direct judicial communications not only in general but with regard to specific cases, with the aim of facilitating the prompt return of these children to their habitual residences (including returning them to other countries from the U.S. if they are wrongfully detained here).
As one of the four judges designated by the State Department to participate in this network, over the past 18 months or so that the network has been operative, my colleagues and I have seen impressive results. My own involvement in the Goldman case, modest as it was – speaking with judges, attorneys, and the Central Authority in Brazil – is a testament to this.
As an example of what is being accomplished, Hague Network judges in the United States recently proposed to the State Department that in each of the jurisdictions where a major American airport exists, a 24/7 duty judge should be designated by that jurisdiction to be available for emergency contact in the event that a parent is seeking to depart precipitously from the United States in violation of the custody order of an American court. The local judge could put a hold on the case for up to 24 hours, just enough time to hear from the state that has custody jurisdiction over the child.
This proposal would not have prevented Sean Goldman’s wrongful detention in Brazil, since his mother in effect left the U.S. with him under false pretenses, then detained him there. But it may well prevent a number of inappropriate abductions in the future.
In our dealings in the coming months with judges and central authorities (designated under the Hague Convention to assure a country’s compliance with the the convention), the Hague Network judges will be working hard to emphasize to our counterparts abroad that prompt compliance with the terms of the convention is in everyone’s best interest – especially, but not only, the child’s.
Peter J. Messitte is senior judge of the U.S. District Court for the District of Maryland.
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