Consultor Jurídico Magazine
November 3, 2008
American Parent Fights Over His Son’s Custody With a Brazilian
Translation by M. Perez
he American citizen David Goldman has been forbidden from mentioning the names of the attorneys Paulo Lins e Silva and João Paulo Lins e Silva in his website Bring Sean Home [BringSeanHome.org]. NOTE He has also been ordered to withdraw the offenses made against the two attorneys.
That order was pronounced by Judge Marisa Simões Mattos of the 13th Civil Court of Rio de Janeiro and is part of a collection of Court decisions that tell the story of the dispute over the custody of the boy, 8 years old, Goldman had with the businesswoman Bruna Bianchi, recently deceased, and João Paulo Lins e Silva, with whom she was married at the time of her death and who is the child’s stepfather.
Bruna Bianchi (daughter to the owners of Quadrifoglio restaurant in Rio de Janeiro) met David Goldman in Milan, Italy. The two started dating, met each other’s families and got married in 1999 in the United States, and then moved to New Jersey. Sean was born of that relationship in 2000.
Bruna was working while the child stayed with his father who took care of him during the day, as David Goldman did not have a formal work schedule. In June of 2004, Goldman gave an authorization for Bianca and their son to travel to Rio de Janeiro on vacation. They had return tickets dated July 11, 2004. Goldman drove his wife to the airport. Two days later, she called him and told him that neither she nor the child would come back to the USA, and imposed a condition that he could only visit the child if he agreed to divorce her before the Brazilian Justice.
After that, the mother recorded an action requesting custody of the child before the Family Court of Rio de Janeiro. For that purpose, she hired the attorney at law João Paulo Lins e Silva, Paulo Lins e Silva’s son, owner of one of the most famous law offices for family actions and former president of the International Union of Attorneys (UIA). He is also a relative of Técio Lins e Silva, a counselor to the Brazilian National Justice Council and the deceased Evandro Lins e Silva, former Minister of Justice and the Supreme Federal Court, an icon of Brazilian Justice and Law.
The professional contact grew into a love affair and João Paulo and Bruna got married in 2007. Last August, Bruna died during the birth of the daughter she had with João Paulo.
From that day on, David Goldman intensified his fight to stay with his son, because he understood that since the mother had passed away his rights as father were clear and certain. However, João Paulo did not think the same way, and he recorded an action claiming recognition of the child’s affective paternity and replacing the biological father’s name on the child’s birth certificate. He gained temporary custody of the child at the State Court. Still before the State Court, João Paulo was granted an injunction prohibiting newspapers from disclosing that fact. Folha de S. Paulo was one of the newspapers to receive such an order. According to his father, there is also a similar decision against TV Record Network and O Correio Brasiliense newspaper.
David Goldman, in the United States, appealed to the U.S. authorities reporting the ‘abduction’ of his son as per the terms stipulated in the Hague Convention on the Civil Aspects of International Child Abduction of 1980 – the Hague Convention. According to such Convention, Brazil must find the child and return him to the USA so that the case can be decided upon in compliance with the Judicial System of the country where the child had been living previously.
Read below the splitting of the cause of the action:
Bruna Bianchi versus George David Goldman
Bruna left the United States with her son on June 16, 2004 for a fifteen-day vacation in Brazil. On July 8, she recorded an action requesting the custody of her son before the 2nd Family Court of Rio de Janeiro. On July 28, Judge Márcia Maciel Quaresma awarded temporary custody of the child to Bruna.
Following his lawyer’s advice, David Goldman remained silent in the proceedings. He was advised not to enter into any kind of agreement with his wife, not even before the Court, in order not to mischaracterize the child’s "abduction" under the interpretation of the Hague Convention.
On July 26, 2006, Judge Gerardo Carnevale Ney da Silva decided on the merit awarding full custody of Sean to his mother. Goldman appealed the decision before the Appeals Court. On February 27, 2007, the 8th Chamber upheld the decision. ‘The social study, a legitimate report, elaborated by a professional appointed to assist the legal proceedings of the 2nd Family Court leaves no doubt as to the fact that the child (who has already been in Brazil for over two years) is well adapted to the environment provided by his mother, significantly interacting with his classmates, and shown to be a normal and happy child.”
On July 25, 2006, Bruna recorded another action before the 2nd Family Court, in which she claimed a contested divorce. As pronounced in the Court decision, she decided to notify Goldman herself, who advised by his attorneys did not respond to the proceedings in order not to mischaracterize what he considered to be his son’s "abduction." The decision regarding divorce was pronounced by Judge Gerardo Carnevale Ney da Silva in July 2007.
George David Goldman versus Bruna Bianchi Goldman I
In September 2004, the American recorded a civil action before the Court of New Jersey against Bruna and her parents as defendants. Goldman held them responsible for taking part in the "abduction" of his son, since they were together in the United States before Bruna and the child traveled to Brazil. Bruna was summoned to appear with the child before the American Court within 48 hours so that the dispute over the child’s custody could take place before the Court of the country where he lived, as provided for in the Hague Convention.
That order was not complied with. The US Court sentenced Bruna and her parents to pay daily fines. In order to avoid paying such fine, Bruna’s parents entered an agreement with David Goldman. He received $150,000 as compensation to cover his attorneys’ fees and court costs. In exchange, David Goldman dropped the former in-laws as defendants from the action.
George David Goldman versus Bruna Bianchi Goldman II
Besides the action recorded before the American Justice, in November 2004 Goldman recorded an action before the Federal Court of Rio de Janeiro requesting compliance with the Hague Convention compelling the mother to return the child to the United States.
The Hague Convention sets forth that the child should be taken to the country where he lived in order to discuss the child’s custody in the proper judicial proceedings. Article 12 of the Convention provides that ‘the judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment’.
Based on that final phrase – ‘unless it is demonstrated that the child is now settled in its new environment’ – the Federal Court denied Goldman’s request. There were three adverse decisions – first instance, Appeals Court and Superior Court of Justice. The thesis that the child’s welfare should come first prevailed. As the child had been living in Brazil for over a year, he should stay in Brazil.
The Federal Regional Court decision states as follows: “it is highly important also to consider that little Sean has been well taken care of in his current residence and he is perfectly adapted. He is attending an excellent school, and he plays with children of his age and enjoys the company of his mother’s relatives; he has been receiving total support both materially and emotionally. No psychological harm can be attributed to the guardianship effectively carried out by the mother, nor has any substantial damage occurred after changing domicile to Brazil, except as is evident – and not unimportant – the lack of regular paternal contact.
The decision was maintained by the 3rd Chamber of the Superior Court of Justice, but it was not unanimous. During the trial that took place in June 2007, the reporting Judge, Minister Nanci Andrighi, received a letter from the United States Embassy, signed by the Consul General, in which he criticized the arguments made before the Brazilian Justice, warning that if such theory would prevail it ‘would be virtually impossible for any child taken out of the USA to return thereto’.
The letter read as follows: ‘This Embassy would also like to express its concern regarding the judicial decisions taken up to the present moment which have not complied with the Hague Convention on the Civil Aspects of International Child Abduction to the retention of S. R. G. based solely on the time the child remains in Brazil since his retention. Taking into account that the time to conduct court proceedings in Brazil by itself makes the return of the child unfeasible as per the Hague Convention, therefore it will be virtually impossible for any child taken out of the United States to return thereto. Such a precedent would authorize the denial of return of any minor, regardless how illegal the conditions of such abduction from the United States of America had been, and that would stimulate exactly the behavior that the Hague Convention and its signatories wish to repress’.
The Minister did not bow to the Embassy request and used the exception provided for in Articles 12 and 13 of the Hague Convention to justify the child staying with his mother in Brazil.
‘When proven, as it had been in this case, that the child is already settled in its new environment, the corresponding judicial or administrative authority shall not order the return of the child (Article 12), as well as if there is risk that his or her return would expose the child to psychological harm (Article 13, item ‘b’), as proven in the appealed decision, all that taking into account the highest consideration for the child’s best interests. It should be pointed out that, contrary to the appellant’s allegations, both decisions, the one of the first instance and the other of the Appeals Court, are essentially based on the Hague Convention on the Civil Aspects of International Child Abduction, strictly complying with provisions of the international treaty as far as foreseen exceptions are concerned, and the alleged violations to the applicable legal provisions shall not prevail.’
Ari Pargendler and Carlos Alberto Menezes Direito (today a member of the Supreme Federal Court) did not follow the same decision. ‘If not mistaken, the local Court literally contradicted Article 13, ‘b’, of the Convention because no serious risk to the child was proven. The child’s interests are not under discussion. We are before a Convention that prohibits child abduction, even if carried out by the father or the mother, and which requires the judge with jurisdiction to prosecute and rule on the resulting claim. This decision can not go beyond that definition,’ said Pargendler.
Direito has also challenged the time-barred thesis to justify the child staying in Brazil in violation of the Convention. ‘What are we doing when we admit that the consolidation of such situation by the time elapsed prevents child’s return? We are assuming that anyone can violate the Convention, abducing his/her child, with a Court authorization, for a specified period of time, from the country of origin and stay here protected by a process that can be time consuming‘, he said.
David Goldman appealed that decision before the Supreme Federal Court. The appeal has been suspended with the death of Bruna Bianchi. She died during the birth of the daughter she had with João Paulo.
With the death of his son’s mother, the American father believed he could have his son back. The appeal he filed to defend his right before the Supreme Federal Court regarding discussion of compliance with the Hague Convention ended up being meaningless, since the action was against Bruna.
João Paulo versus David
In the same month in which Bruna died, João Paulo filed an appeal before the 2nd Family Court (the same Court that awarded the mother custody of the child and then awarded her divorce) putting the case in the hands of the same Judge, Gerardo Carnevale Ney da Silva, on August 28, 2008, a petition to file an Ordinary Declaratory Action to recognize Affective Paternity, combined with Guardianship and Custody, with a request of Injunctive Relief against the biological father.
The Judge’s decision was pronounced on that same day after the Public Prosecutor, who accepted the claim and awarded custody of the minor child to João Paulo, was heard. ‘In order to keep the affection the child has been receiving, in such a difficult time in his life, the injunction is granted as requested in order to immediately grant the plaintiff guardianship and custody over the child as to fully guarantee his personal and emotional development’, the judge decided.
On September 7, Goldman came to Brazil, together with his mother, with the intention of taking custody of the child, after Bruna’s death. He was surprised by the declaratory action. Goldman’s attorneys filed an appeal before the 8th Civil Chamber of the Appeals Court of the State of Rio de Janeiro on September 17, requesting a stay of the proceedings, which was denied by the Appeals Court Judge Adriano Celso Guimarães.
Also in September, David Goldman’s attorneys addressed the 2nd Family Court requesting permission for the biological father to visit the child. The request was denied by the Public Prosecutor who alleged the ‘child should be physically, mentally and emotionally protected’. On September 19, Deputy Judge, Ricardo Campos Lafayette, denied the request ‘in the face of the unique situation’.
Justice versus Press
Besides publishing details of the case on his website, David Goldman issued a press release that disclosed the fact to the newspapers. The news was published by Folha de S. Paulo newspaper in September. The event eventually resulted in a new court decision.
On September 23, João Paulo’s attorneys recorded a lawsuit against such disclosure of facts that were being discussed in the case. As it is being processed in the Family Court, it should be under “justice confidentiality”, despite the fact that Court decisions are disclosed in full at the official Appeals Court website.
Judge Ricardo Lafayete Campos accepted the motion, but he fell into contradiction. He said he had no jurisdiction to prevent the biological father and his attorneys from giving interviews, but accepted the motion for censure against Folha de S. Paulo newspaper setting a fine of R$150,000 (Brazilian Reais) for each article published.
‘The relevant work these corporations often provide to society by distributing information, is not unlimited, since the national laws foresee limits meant to preserve people’s rights regarding honor and image. Therefore, the plaintiff’s request to make the Folha de S. Paulo corporation refrain from giving publicity to procedural acts must be accepted’, he said.
There is, however, no way to prevent the biological father or his attorneys from talking about the child or even to give interviews about the ongoing process. Nevertheless, the fact the any third party or the media receives such information does not exempt them from the obligation to keep it confidential, under penalty of civil and criminal liability, as well as administrative liability before in the Brazilian Bar Association’, he stated. TV Record Network was also prevented from speaking.
State versus João Paulo
After Bruna’s death, when the child’s custody was awarded to the stepfather, the biological father once more asked the Government of the United States to take measures regarding the ‘wrongful detention of a child by a person not holding the right of custody’. The American authorities forwarded a request for interjurisdictional cooperation to the Brazilian government.
As an entity responsible for honoring commitments undertaken in the Hague Convention in the national territory, the Special Secretariat for Human Rights of the Presidency of the Republic (SEDH/PR) asked the Brazilian General Attorney’s Office to record a motion requesting the return of the child to his father in the United States. The request for search and seizure of the child was filed before the 16th Federal Court of Rio de Janeiro.
The Brazilian General Attorney’s Office also requested, in case the request for search and seizure is not immediately accepted, that the Court should prohibit the stepfather from leaving Rio de Janeiro, granting visitation to the biological father of the child, and at last, remittance of the affective paternity action recorded before the State Family Court to the jurisdiction of the Federal Court.
Judge Rafael de Souza Pereira Pinto denied Injunctive Relief for search and seizure of the child, and did not accept the motion to prohibit the stepfather from travelling out of Rio with the child since there “were no elements in the case records that indicated the defendant had any intention to escape, taking the minor child with him to any uncertain and unknown location’.
The only motion accepted was the one to grant the biological father the right to visit his son. The decision was pronounced on October 1. One of João Paulo’s attorneys was officially informed of that decision on October 8, a week later. There was also an appeal addressed to the Federal Regional Court, which was denied.
On October 17, David Goldman landed in Rio to visit his son. His attorney informed João Paulo’s attorney of his arrival. It was raining heavily, which resulted in the Judge determining that the visit should start on Saturday morning. Saturday morning, October 18, three Court officials, two Federal Police officers, a representative of the American Consulate, and Goldman’s attorney accompanied the American.
David Goldman was not able to see his son. He was told that in the apartment where João Paulo lives with the two children, as per Justice records, only the baby born in August, Bruna’s parents and her brother were at home. In the following week, João Paulo told a friend of his that he did not know that the American was coming to Brazil and that is why he travelled to Búzios with the boy. David stayed a few more days in Brazil until he was informed that the visit would be postponed.
Paulo Lins e Silva and João Paulo versus David Goldman
Goldman returned to the United States. Attorneys Paulo Lins e Silva and his son João Paulo Lins Silva [ Paulo Lins E Silva, Advogados e Consultores de Familia, www.paulolinsesilva.com.br] have recorded a new action before the 13th Civil Court claiming punitive damages due to the interviews given by Goldman. Paulo Lins e Silva even claimed international losses because he was no longer invited to lectures. They also requested the Judge to prohibit the American from disclosing case proceedings.
Judge Marisa Simões Mattos accepted the request and ordered Goldman to ‘refrain from issuing and/or disclosing, by any means, offenses to plaintiffs, in special, as far as the facts related to the custody of the child are concerned, as well as to erase from Internet websites the offenses already mentioned in the initial petition, no later than five days as from subpoena, under penalty of a daily fine of $ 300 Brazilian Reais’. No appeal against that decision has been filed yet.
The magazine Consultor Jurídico talked to Paulo Lins e Silva who responded he would not speak about the matter due to Court decisions pronounced in the actions filed by him, which prevented the press from disclosing the facts of the case. ‘It’s a protective measure on behalf of the child’, he said.
Ricardo Zamariola Junior, David Goldman’s attorney, would not comment because the case is under justice confidentiality orders.
© 2008 Consultor Jurídico Magazine, 3 November 2008 http://www.conjur.com.br/static/text/71392,1
NOTE: The logo and URL "http://bringseanhome.org " as well as the contents of BringSeanHome.org are owned, operated, edited and published by The Bring Sean Home Foundation, Inc.