Diplomacy arrives on the scene
by Dorrit Harazim
Translation and adaptation by Rachel Glickhouse
The custody dispute for young Sean has changed realms, now in the major Brazilian media after being printed in the New York Times and knocking on the doors of the White House and the Presidential Palace in Brazil
hris Smith is an affable, chubby, middle-aged American whose cheeks turn rosy when he comes in contact with a ray of sunlight, and is always traveling. His itineraries aren’t always on the tourist circuit. Amongst other countries, he has been to Russia, Georgia, Romania, Vietnam, China, Sudan, Cuba and Northern Ireland. For twenty-eight years he’s been snooping around “in loco”, examining the state of human rights of some of the most vulnerable groups. A Republican Congressman from New Jersey since 1981, he is a senior member of the powerful International Affairs Committee in the United States Congress. He’s also known as one of the most tenacious congressmen on Capitol Hill. Child labor, sex slavery, genocide and social ills of all kinds take him to many places abroad.
At the end of January, Mr. Smith was preparing to spend the weekend with his family at their home in Hamilton, in the state that four months ago, reelected him for the fifteenth consecutive time. It was ten o’clock in the evening and he was watching TV with his wife, Marie. They were tuned into Dateline, on NBC, one of the most renowned news programs on American television, with an hour devoted to long features. One of the themes that Friday was the case of David Goldman, an American whose Brazilian wife, Rio-born Bruna Bianchi, fled to Brazil in 2004 with the couple’s son, Sean, then age 4. The documentary Fighting for Sean told the story of this father’s struggle to see his only son again since then (see “A Father in a Foreign Land,” in Piauí November 2008).
The NBC show recapitulated the events through Goldman’s eyes, and the ball of yarn that unraveled into a disaster caught Congressman Smith’s attention: married for the second time to Brazilian lawyer João Paulo Lins e Silva, Sean’s young mother died due to complications giving birth last August. The boy, separated from his biological father by force from his removal and retention in Brazil, thus became also orphaned by his mother. Even so, all of the father’s legal attempts to bring his son home to the United States, as determined by the International Hague Treaty, signed by Brazil, were bogged down in the Rio state courts. The head judge at the Second Family Court, Geraldo Carnevale Ney da Silva , granted the boy’s stepfather provisional custody of the child, as his “socio-affective father”. The stepfather also filed a request to have his Sean’s last name be changed from Goldman to Lins e Silva.
With Dateline’s credits still rolling on the screen, Congressman Chris Smith, a father of four, decided he should get involved with the case. After all, Sean was an American citizen, born in the state of New Jersey. Furthermore, Smith had been successful in the complex repatriation operation of two girls last year. On that occasion, sisters Ashley, age 7, and Sophia, age 3, were retained in Georgia during the Russian invasion, separated from their father.
It was a little after 11pm when Mark DeAngelis, creator of the site bringseanhome.org, an electronic tool in the campaign for Sean’s return to his father, received a message from Mary Noone, Congressman Smith’s Chief of Staff. The congressman wanted to meet David Goldman and asked that he come to his office within two days, on Monday afternoon. Goldman, who didn’t know what to expect, went to the meeting with his American lawyer, Patricia Apy and his friend Mark. When he was informed that Sean’s father was summoned to a hearing in the Superior Court of Justice (STJ) in Brasilia, scheduled that week, Chris Smith offered to accompany him. “I was amazed,” Goldman said later, “since he made that decision in less than ten minutes into the conversation.”
Goldman had already been to Brazil seven times, each time to attend the judicial procedures that have so far prevented Sean’s return—once with his mother, twice with his cousin, and the other four times, alone. On every trip, he went home empty-handed. And each time, he left with the impression that it was getting more difficult for the courts to comply with the Convention on the Civil Aspects of International Child Abduction – known as the Hague Convention – which supports his plea.
Actually the Portuguese translation is inadequate, since “kidnapping” in Brazil is normally understood as a violent act committed along with extortion as a means to make money. The “kidnapping” the Convention deals with is basically an act committed by a parent, who takes away the child from the other parent. When a child is brought to another country without the consent of the other parent, this constitutes, under the Hague Convention, international child abduction, found in the treaty’s title. The Hague Convention also stipulates that before the child’s custody is debated, the first act (the “kidnapping”) must be undone, and the status quo must be reestablished. The litigating parties can then resolve the dispute in the courts where the child resided before the illicit act.
The official presence of a member of the Congressional Foreign Affairs Committee at David Goldman’s side propelled the case to another realm. But Chris Smith was not the only American congressman to show support. Last October 29th, six days before being elected as the 44th president of the United States, the former Senator Barack Obama sent the following email to a friend of Goldman:
Dear Christopher [Rennau],…as the father of two children, my heart goes out to the Goldman family…According to the information from the Office of Children’s Issues, as well as the American embassy in Brazil, the United States is working along with the Brazilian Central Authority to return Sean under the Hague Convention…you can be sure that I will remember your concern regarding the progress of this case…I ask that you stay in touch from now on.
For some time, the diplomatic channels between the two countries have been working in silence about the matter. On a frigid afternoon in Washington, with the American capital electrified by the inauguration ceremony of the White House’s new occupant, which took place the night before, the head of the abductions unit at the Office of Children’s Issues received this reporter from piauí magazine. “Cases of child kidnapping by the parents have increased worldwide, annually,” explained Martha A. Pacheco, who has worked for the State Department for twenty years and has been located in the unit responsible for compliance with the Hague Convention for eighteen months. There are multiple causes: an increase in the number of marriages and divorces, a greater ability to travel, and above all, a strong rise in immigration.
The Office, which has a team consisting of forty employees, is a division of the State Department, now run by Hillary Clinton. By regulation number 105-277, section 2803, the department is obligated to produce an annual report for Congress, listing the countries that impede the compliance of the Hague Convention. Of the 68 signatories of the treaty, which went into effect in 1980 and was ratified by President Lula in 2000, ten countries are considered non-compliant, according to the most recent edition, dated April 2008. Among them is Brazil.
Three areas are analyzed to determine if a signatory country does or does not comply with the treaty: the Federal Central Authority’s performance, which in Brazil is a branch of the Special Secretary of Human Rights and therefore subordinate to the Executive Branch; the behavior of the Judiciary in how it treats the cases; and the law enforcement performance in the execution of legal decisions.
Brazil was approved in the first and third compliance areas. But, along with Bulgaria, Chile and Germany, Brazil failed miserably in the second requirement, Judicial performance. “Even in the United States there are judges who have never heard of the Hague Convention,” clarified Michele Bond, Deputy Assistant Secretary of State for Overseas Citizen Services from the Department of State, interviewed by phone.
At the time of my interview with Martha Pacheco, which occurred before Dateline aired to an audience of more than six million viewers, the diplomatic dimension of the Goldman case was still limited. Even so, stressing the point that she was generalizing, the head of the Kidnapping Unit reiterated the American position: “We never abandon a case, we never give up.” When asked if she expected a change in the course of the Goldman case as Hillary Clinton was taken over as Secretary of State, her answer came out spontaneously: “This is a case we really will try everything.”
The phone conversation with Deputy Assistant Bond, however, took place nearly two weeks after the documentary was shown and had generated such a wide response that NBC decided to continue covering the case. In the meantime, two Democratic senators from New Jersey, Frank R. Lautenberg and Robert Menendez, sent a joint letter to “Dear President” Lula asking “respectfully, that you examine and take the appropriate measures necessary to return Sean to his father:” all this in the name of the strong and friendly bond between Brazil and the United States. Congressman Chris Smith, on the other hand, had also gone on the promised trip to accompany David Goldman to official meetings in Brasilia and the first reunion between father and son in Rio.
ichele Bond was cautious. “Judges don’t evaluate the case based on its visibility,” she declared. “Most of the work has been done in silence, in the wings, behind closed doors. Publicizing the story only made more people identify with the case in a more personal way. You end up thinking: ‘if this happened to me, what would I do?’ With this aspect in mind, publicizing the story is positive since more people become aware of the existence and meaning of the Hague Treaty. The purpose of the Treaty, as a matter of fact, is to alert people that you cannot simply pick up your child and take him away.”
In the last year alone, the Office of Children’s Issues dealt with 575 cases of illegal removal of minors by one of their parents, involving a total of 821 children. Brazil is the fifth country on the list, while Mexico is the first, with 195 cases involving 320 children.
Continental Flight 0031, which took off the night of last February 4th from Newark, New Jersey en route to Guarulhos (São Paulo), was midway when an American stewardess lightly touched passenger Goldman’s shoulder: “I just want to let you know that our crew would very much like to be on duty when you bring your son home,” she said.
At the request of Congressman Smith, who took another flight accompanied by aide Mark Milosh, a staff member from the US consulate in São Paulo met the group at the airport. It was the first time in all of Goldman’s trips to Brazil that anyone besides his Brazilian lawyer, Ricardo Zamariola Jr, barely 28 years old, was awaiting him.
On the connecting flight to Brasilia, the American was approached again. A young Brazilian couple who live in the US introduced themselves: “Excuse us, are you David?” “Yes.” “We watched the show that told your story, back in Washington. We just want you to know that we also think what’s happening to you is wrong..”
The group that landed in Brasilia at the end of that afternoon had a very busy schedule. There was barely time to check into the hotel, unpack their bags, take a shower and get to the second floor of the Ministry of Justice for the first meeting, with the Central Federal Authority coordinator, Patricia Lamego Soares. A law school graduate with a Masters in International Affairs from the George Washington University, Patricia Soares is adamant about keeping a low profile – for herself and for parents involved in international abduction cases. She works with a tight, highly focused team of five people. She has been working on Sean Goldman’s case since September 2004, when her department was notified by the Office of Children’s Issues in Washington that a child had been illegally retained by his mother in Brazil.
Respected for the assurance with which she accomplishes delicate tasks and stays cool under pressure, she hadn’t yet met David Goldman, only his Brazilian lawyer. Ricardo Zamariola, from the São Paulo law office Tranchesi Ortiz & Andrade, has been practicing cases involving the Hague Convention for six years. He repatriated four children since graduating from law school in 2004 –one to Sweden and the others to the United States – and he has five other pending cases.
Paulo Lins e Silva and his son João Paulo – Sean’s stepfather – are well known in Brasilia. Paulo is the head of one of the largest law firms practicing family law, as well as being ex-president of the Paris-based International Lawyers Union, and is proud to belong to the century-long line of attorneys that the Lins e Silva family has produced. Currently, father and son are defending, along with the General Advocacy Union (AGU), a Canadian father fighting for the right to reunite with his eight year-old son, after the boy was illegally brought to Rio in 2004 by his Brazilian mother.
For the next meeting with Minister Paulo Vannuchi, Special Secretary of Human Rights, who had to be substituted at the last minute to attend a funeral, the Goldman entourage included American Consul Joana Weinz and another staff member from the US Embassy, Marie d’Amour. According to a member of the group, Congressman Chris Smith received a phone call from a member of Hillary Clinton’s staff shortly before entering the room.
From there, the Americans proceeded to the residence of Clifford Sobel, the American Ambassador to Brazil.
David Goldman was hopeful and tense. “It seems like everything is happening, but at the same time, nothing is happening,” he said. “I’m just a regular guy who wants his son back, and here I am walking in and out of meetings with high officials.” He later returned to the hotel to prepare for the tense marathon awaiting him the next day, when he would come face to face, for the first time, with João Paulo Lins e Silva.
It was Friday, February 6th, and Brasilia had emptied out, with most members of parliament back in their home states. David Goldman had a last meeting with his lawyer, He was wearing a brown suit jacket, slacks and a tie and didn’t notice that a sales tag was still hanging from his sleeve. Feeling uneasy about his attire, he rushed back to his room and changed into a dark suit.
A van from the American embassy came to pick up the group for the first meeting, with Oto Agripino Maia, Deputy Sub-Secretary of Brazilian Communities Abroad. It was held on the second floor of the Itamaraty building. A few days before, Maia, a former Brazilian ambassador in Pretoria, the Vatican, and Stockholm, had made a courtesy visit to Minister Luis Felipe Salomão, from the STJ, and mentioned that the Goldman case was beginning to cause unease. From the Itamaraty building, the entourage went to a meeting with Minister Ellen Gracie, at the request of the US Ambassador. The visitors arrived at Annex 2 in the Federal Superior Court twenty minutes late, but the minister, in a gray suit and with impeccable English – compatible with her eye for a seat in the World Trade Organization – didn’t complain.
The part of the agenda intended to demonstrate David Goldman’s strong support by his country’s diplomacy, was completed. The crucial and substantial part of his visit to Brasilia would begin two hours later.
None of the parties summoned risked arriving late to the majestic Superior Court of Justice headquarters, built in 1995 with architectural pomp that overshadows other buildings in the area, all carrying Oscar Niemeyer’s signature. On a Friday without regular hearings, the interior of the colossal mass of courtrooms and meeting rooms was practically deserted. Each step echoed in the hallway. The museum on the second floor had no visitors, whether Brazilian or American. No wonder: right at the entrance, as the collection’s first item, are two enshrined pages from a celebrity magazine, Caras, dated June 25, 1999, showing an article on “Judge Eliana Calmon Alves, the Pioneer Minister of the STJ.”
David Goldman and João Paulo Lins e Silva had been summoned by Judge Luis Felipe Salmão for a conciliation hearing. The arrival of the two groups in the deserted hall on the second floor intrigued even the EMTs on duty. With a circulating population of seven thousand people per day, the STJ has forty of these professionals ready to assist in emergencies. “A place like this has emotions running high, and sometimes it’s the judge who gets ill, other times it’s someone who came to the hearing,” explained Eleusa Oliveira, an EMT for two years. Besides her luminous yellow uniform, she was equipped with surgical gloves, a mask, and hospital glasses, and had a stretcher and first aid kit stand-by.
he conciliation hearing took place behind closed doors, with the attorneys dressed in robes, and lasted nearly six hours. Sitting at the back of the room, as observers, were the coordinator of the Federal Central Authority, Patricia Lamego, Congressman Chris Smith his aide Mark Milosch, Marie d’Amour from the American embassy, and Paulo Lins e Silva. Seated at the rectangular table reserved for those attending, in front of Judge Salomão, the four participants faced each other. Ricardo Zamariola, David Goldman, an interpreter and Sergio Brito, from the Advocacy Union, sat on the left side. João Paulo Lins e Silva and his team were on the opposite side of the table.
It was the first time that Sean’s father and stepfather saw each other, heard each other, and sized each other up directly. “I admit that for a while David seemed to be calmer than I,” admitted David’s lawyer, Zamariola, a few days later. “Basically, when the client has nothing to hide, he can say whatever he wants: there’s no risk of making a mistake.”
As expected, the conciliation about the main issue –repatriating or not repatriating Sean to the United States—quickly imploded. It wasn’t the translator’s fault, who was replaced by an interpreter from the embassy so that the process could proceed smoother. David Goldman, who walked into the hearing carrying notes he had written the night before, didn’t reveal the session’s content or developments. But according to one source, his arguments had a personal tone –“I don’t understand why I’m here begging to be with my son,” he said – while João Paulo Lins e Silva maintained a professional, lawyer-like tone.
Recognizing the unlikelihood of reaching an agreement, Minister Salomão reached a more punctual and immediate decision –a teratologic one, as attorneys like to say—of the judicial dispute: the father’s right to visit his son, which had been denied to Goldman in various ways since Sean left with his mother four and a half years ago. This way, it was decided that the American was authorized to see Sean every time he came to Brazil, beginning the following Monday from 9am to 8pm. All he had to do was announce his arrival ahead of time.
The high level of adrenaline behind all those comings and goings only erupted the next morning, when Congressman Smith, the only participant to give interviews after the conciliation hearing, visited a church in Brasilia with David Goldman. They stayed at the Dom Bosco Sanctuary for several hours. The church, built at the same time as Brasilia nearly 50 years ago, bore witness to the uncontrollable sobs of a 42 year-old father.
Monday, February 9th, day 1,698 since Bruna Bianchi left with her son from Liberty International Airport in New Jersey. By court orders, a psychologist had to be present during the first and subsequent encounter David Goldman had with Sean. The visit took place in the playground of the apartment complex where the boy’s maternal grandparents live, and included two other witnesses that kept their distance: Congressman Smith and Karen Gustafson de Andrade, an American consular official.
Last October, despite having a court order in his hands to visit his son at that same address, Goldman, his lawyer, three court marshals, and Karen waited to no avail for three hours. João Paulo Lins e Silva had decided to spend the weekend out of town with his stepson.
Karen’s presence at the encounter between father and son may be explained by an onging policy of the Office of Children’s Issues in Washington. “For fifteen years we’ve trained diplomatic officials to have a better idea and understanding of the emotions felt by a parent or child in such cases . Some lectures are given by adults who were kidnapped as children, or by the a parent who had a child abducted”, explained Bond. Most often the officials who receive such training are consular officials.
At 7:30pm, Ricardo Zamariola, who this time thought it unnecessary to stay in Rio, received the first phone call from his client. Goldman was ecstatic. He jumbled phrases and described sensations that written down would become a heap of clichés. “I knew it would be like this—after all, he’s my son,” he said. According to his account, the psychologist appointed by João Paulo Lins e Silva was understanding, competent, discreet and kind during the visit. When Sean at one point asked his father, in English, why he hadn’t come to visit him sooner, Goldman said he felt comfortable consulting with the psychologist if he should answer. She told him he was free to do so. The rest of the day was spent on the basketball court and in the swimming pool.
The inner turmoil experienced by Sean, the grandparents, the father, the stepfather , on that first night after the visit must have been huge. As expected, nothing was the same when Goldman arrived for the second and final visit to his son before returning to the United States at the end of the day. The mood was tense. According to the American, the psychologist from the day before had been replaced by a professional who preferred to intervene in a stricter way, inducing Sean to speak in Portuguese instead of English. Despite having permission from the court to take his son outside of the apartment building, Goldman ate a sandwich brought from the hotel, alone, while the boy was called inside to have lunch.
It was at the end of the day, sitting in the van that took him to Galeão Airport, that Goldman received the most promising news about untying the legal knot. By unanimous decision, the nine ministers in the 2nd Section of the STJ had decided that the court designed to judge the two lawsuits regarding Sean’s fate was to be a Federal Court, not a State court. More specifically, the 16th Civil Court. Until then, the lawsuit filed by João Paulo Lins e Silva citing “socio-affective paternity” of Sean, was in the hands of state Judge Gerardo Carnevale Ney da Silva, the head of the 2nd Family Court. And the lawsuit filed by the General Advocacy Union, along with Ricardo Zamariola, demanding Sean’s repatriation, was in the hands of federal Judge Rafael de Souza Pereira Pinto. The decision from their superiors in Brasilia consolidated the Federal Court’s ability to judge the two cases.
avid Goldman took a train to Washington without even unpacking his suitcases from his trip to Brazil. A meeting with Antonio Patriota, the Ambassador of Brazil in Washington had been scheduled for that same day. Last December, the State Department had mediated a meeting request between the two parties, and the task of receiving the American visitor fell to the Consul General of Brazil, Ambassador Almir Barbuda.
A week later, in New York, while dozens of people rallied on the sidewalk in front of the Brazilian Consulate with signs demanding Sean’s return, Goldman was also received sympathetically by Minister Frederico Arruda. But the meeting on February 12th with Ambassador Patriota, which took place in Congressman Chris Smith’s office, can be considered an indication that the case is now definitively on the two countries’ diplomatic agendas.
In Brazil, it was Ash Wednesday. In the United States, the February 25th edition of the New York Times printed a long story on page 21, with 28 paragraphs, entitled “Custody case tests abduction laws and U.S. – Brazil ties.” Written by Kirk Semple with reporting from the newspaper’s correspondent in Brazil, Alexei Barrionuevo, the story had an immediate effect on the Brazilian media.
Until then, the case of the youngster had been buried in most of Brazilian editorial offices, due to personal choices of the reporters and the media corporation owners, or as the result of gag orders emitted at the request of the Lins e Silva family to block the story, in a strict interpretation of the fact that the case was protected by the secrecy of justice. The publication of the story by the most prestigious newspaper in the world, with first and last names in full, unleashed a great rush to go after the protagonists. Goldman and his lawyer responded to an average of five requests per day. The Lins e Silva family, who had so far always refused to be available for interviews on the record, eventually agreed to enter the dispute to try to influence public opinion. A news program anchored by Carlos Nascimento, from the channel SBT, ended up being the first Brazilian TV program to break the Goldman story.
The New York Times story of Feb 25 story was also a preview of what was to come that same afternoon in Washington. “The case has become a sore point in the relationship between the United States and Brazil, and will be on the agenda for the meeting [scheduled for that day] between Secretary of State Hillary Clinton and Brazilian Chancellor Celso Amorim.” According to a State Department official, the case of the American father David Goldman from New Jersey was, indeed, not merely one of the items, but the first item on Hillary’s agenda with Celso Amorim. According to the same source, the Secretary of State was fully informed about the unanimous Brazilian Superior Court decision, and showed her satisfaction with the end of the legal impasse. Clinton asked for a “positive solution.”
At the Palácio do Planalto, President Lula’s staff was looking forward for his official visit to the United States, in March. The high point of his American agenda was to be the meeting with President Barack Obama at the White House. Therefore, Goldman’s case was being seen as “a pain in the neck,” according to a Brazilian senior government official used to translating the president’s moods. The same source added that the Brazilians wouldn’t bring up the matter themselves. That wasn’t expected to be necessary. A rally in Washington scheduled for President Lula’s visit promised a much larger crowd than the one previously seen in front of the Brazilian consulate in New York, four months ago.