Ricardo Zamariola, Esq.
Attorney for David Goldman
São Paulo, 16 March 2009
To: National Council for the Rights of Children and Adolescents
Re: Sean Goldman
I report to this council representing Mr. George David Goldman, an American citizen who, since mid-2004, has been battling hard and fighting judicial battles before the Brazilian courts in an attempt to repatriate his minor son, Sean Richard Goldman, to the United States.
We learned, a few weeks ago, that Mr. Joao Paulo Bagueira Leal Lins e Silva had addressed correspondence to this Council and the Brazilian media, in reference to the case of the minor Sean Goldman. In this correspondence, Mr. Joao Paulo refers to Mr. David Goldman as “…lazy husband…”, exposing publicly, in a demeaning way, alleged intimate details of the first marriage of his wife Bruna.
It’s not the intention of this response to dispute the allegations made by Mr. Joao Paulo that Bruna did not maintain sexual relations with Mr. David Goldman, nor that he did not desire his wife during the marriage. No. Mr. Goldman will not stoop to that level. Although he had litigated against Bruna in the Brazilian and American courts for more than four years, David Goldman has never made negative accusations against the mother of his son. Except for the criticism – always consistently repeated – of her attitude of illegally retaining Sean outside the United States against the will of his father and against American law, David Goldman, during more than fours years of litigation with more than two thousand pages of court proceedings, has never exposed his intimacies with Bruna to anyone, only in the exact measure needed to prove his right to repatriate the minor. David Goldman will not overstep these boundaries now.
Moreover, it is extremely clear that the couple’s sexual routine is irrelevant to the solution of the said controversy at hand: the repatriation of minor Sean Goldman to the United States of America.
Mr. David Goldman will also not waste the Council’s time trying to convince anyone regarding who was the breadwinner of the family when David was still married to Bruna.
This is ultimately because even if Mr. Goldman really were a “…lazy husband…” according to what Mr. Lins e Silva says, even if Bruna was the sole breadwinner of the family when she was married to David, that would not give Sean’s mother the right to retain her child outside the United States, against the father’s will and against New Jersey law where the child had lived since his birth.
Notwithstanding that, some of the financial aspects raised by Mr. Lins e Silva will be addressed later in this letter, not only because Mr. Goldman has been accused of extortion and check fraud, but also because clarifying a few untruths will help this Council give Sean’s stepfather due credibility.
Now that the non-crucial matters in the letter have been made clear, let’s move to the matter that is crucial: the incredible and moving judicial battle in which Mr. Goldman is engaged in two different continents, to retrieve his son.
On this topic, the letter signed by Mr. Lins e Silva leads one to believe that Mr. Goldman, after his son’s removal from the United States, had forgotten about the child. That he would have resigned himself to losing his son. That he would have disappeared, and “…after smelling money…” reappeared more than four years later, when he learned about the passing of his ex-wife. Mr. Lins e Silva says at one point, questioning the true interest of Mr. Goldman in his son: “Note that if he were really suffering or interested he wouldn’t have begun his outcry four and a half years later. He would have done that the week after Bruna came to Brazil!!!”
This writer admits he is perplexed.
Bruna came to Brazil on June 16, 2004, with authorization from Mr. Goldman to remain in Rio de Janeiro only for what should have been be a short vacation period. On June 19, 2004, Bruna told Mr. Goldman over the phone that she would not return to the United States and that she would keep Sean with her, regardless of the father’s wishes.
The travel authorization given by the child’s father allowed Sean to remain outside of the United States only until July 18, 2004. From that day on [July 18th], Sean’s presence in Brazil was considered a retention of the minor outside his habitual residence, going against what the father had consented and thus violating New Jersey legislation.
David Goldman, then, immediately began his “…outcry…”.
Thirty-six days later, on August 23, 2004, Mr. David Goldman requested a court order from the New Jersey courts, pleading for the custody of his son and his immediate return to the United States. On August 26, 2004, the Superior Court of New Jersey delivered the first of three decisions of the U.S. judiciary – all solemnly ignored by Sean’s mother – which determined that Bruna and the maternal grandparents should return the minor to the United States immediately.
A little more than a week later, on September 3, 2004, Mr. David Goldman – then trusting that Brazil would fully comply with its international responsibility – reported his son’s removal to Rio de Janeiro to the U.S. State Department, triggering the mechanism of international judicial cooperation foreseen by the Hague Convention on the Civil Aspects of International Child Abduction. Brazil agreed to the convention, promulgated under decree number 3.413/2000.
More time went by and in October 2004, there was still no word on the conclusion of the international judicial proceedings foreseen in the Hague Convention. Mr. Goldman realized he could wait no longer.
He hired attorneys in Brazil and using one of the options given in the convention, started judicial proceedings in the Federal Court of Rio de Janeiro, asking for his son’s repatriation to the United States. The referred proceeding began on November 16, 2004, less than four months after the retention of his son in Brazil had taken place against his will. On December 22, 2004, Mr. David Goldman was cited for the terms of the custody request, proposed by Bruna before the State Court of Rio de Janeiro. He was present, as stated in the records, and contested the request, also pleading for the child’s return to the United States.
For four months after he received the news that his son would not voluntarily return to the United States, Mr. David Goldman triggered the appropriate mechanism of international judiciary cooperation and, if that wasn’t enough, went forward and got involved in three court orders, two of which were in a country 5,000 miles far from his, whose language he does not speak and where he had been before only for a few days, on vacation.
The only thing Mr. David Goldman did not do was take justice into his own hands.
He didn’t even think about coming to Brazil and removing his child from Rio de Janeiro without the mother’s consent – acting in a similar manner to his ex-wife. No.
Mr. Goldman preferred to trust the Brazilian institutions. He preferred to trust the rule of law, which seems so clear. After all, Brazil, a few years before, had signed an international convention which, as even a layman would understand, expressly determines the return of a child to the country of habitual residence, in the cases in which the other parent did not consent to his/her removal.
Brazil made the six weeks provided by the convention – that’s right, the convention requires the repatriation of the child in six weeks – transform into months, and the months turned into years. Into four long years.
One should note a few things about this case:
First, the Brazilian federal court recognized, in all instances, that Bruna had committed the illicit act mentioned in the third Article of the Hague Convention; that she had maintained Sean in Brazil against the applicable law of New Jersey, where the minor had always lived.
The reason for this father’s defeat was much crueler.
The reason is the following: although it was recognized that Sean was removed to Brazil against applicable legislation, and that, hence in principle his repatriation would be fully appropriate, the Federal Court understood that, at that point, at the time of trial, in October of 2005, too much time had passed, and the consolidation of the actual situation of the child recommended his maintenance in Rio de Janeiro in the company of the mother, although the illicit act foreseen on article 3 had been recognized.
The question that comes to mind is obvious: “What could this father have done differently? What could this father have done to prevent time from passing? To avoid the sentence that recognized that his right was nothing but a consolation prize, with no practical effect? There is only one answer: Nothing, this father could not have done anything differently.
This father could have not come to Brazil and removed his child from Rio de Janeiro without a supporting Brazilian court order. This father needed to appeal to the judiciary. His plea was denied not because he didn’t have the right he was alleged to possess, but because time had passed.
As if this weren’t enough injustice, there is one more circumstance that needs to be noted, related to the processing time of the repatriation demand.
According to what has been previously noted, the court order was filed on November 16, 2004. But on May 24, 2005, the processing of the order was paralyzed by the Federal Regional Court of the 2nd Region, at Bruna’s request, in a motion she filed to contest the competence of the Federal Court.
The paralysis of the process – I repeat, which occurred due to Bruna’s request – lasted until September 21, 2005, when the appeal was rejected by the TRF-2, confirming the competence of the Federal Justice. Only then, only after September 21, 2005, was the case resumed. A few days later, on October 13, 2005, a sentence was given that recognized the existence of the illicit act under Article 3, but rejected Sean’s return since too much time had passed.
Let’s recap: The father needed to go to the courts. He had no choice. He asked the Federal Court to return his son to the US on November 16, 2004. The process was halted, with no progress whatsoever for four months due to Bruna’s request. Afterwards, when the case was resumed and the sentence was made, it recognized the father’s right and said he’s correct. However, it said too much time had passed and the child’s return was not possible. Tell me, what kind of justice is this? What court allows time to diminish the right of the person who is correct, for a cause that involves priceless interests, like the future of a child?
However, this father did not give up. He made use of each and every appeal foreseen in the Brazilian legislation. He appealed. He requested court orders. He witnessed the TRF-2 declare, expressly, that he, David Goldman, did not present inadequate conditions to raise and educate a child, but that, even with all these reasons, it would not be possible. He asked for the help of Superior Court of Justice. Once more, he did not succeed, not because he wasn’t right, but because too much time had passed. He knocked on the doors of the Federal Supreme Court.
This father, accused of forfeiting and being absent by Mr. Joao Paulo, did everything he could.
He fought desperately against the greatest evil of the Brazilian judiciary: its slowness. He made it to the highest court of justice in a country that is not his own, of a country, I repeat, whose language he does not speak and whose institutions he does not understand.
While he awaited his final chance, Bruna tragically passed away.
Mr. David Goldman could never comprehend why the Brazilian judiciary never decided – as it has still failed to do even now – to send his child home.
The law was clear. He, David Goldman, was never accused by Bruna or her family of anything. As a matter of fact, since we’re discussing the topic of accusations, it’s time to say “Enough is enough!”
Because everything Mr. Joao Paulo mentioned in his correspondence to this Council, and everything that Sean’s Brazilian family members have been telling the Rio elite and the media, is new information.
There were never accusations against Sean’s father while the child’s mother was alive. On the contrary.
Now they’re stating that Sean, before turning four years old, while he was still in the US, told his grandmother that his father told him that Bruna didn’t love him [Sean]. Later, when Bruna was in Brazil, learned of this “…barbarity…” committed by the father of her child, and decided to remain here. Now, Sean’s maternal grandparents are speaking to the press, stating that David was violent, that he would punch and break furniture and the walls.
But it’s rather curious that the accusation Sean allegedly mentioned to his grandmother, that his father was poisoning Bruna’s image in the eyes of the little boy, only came to light before Joao Paulo’s letter was written, almost five years after the marriage between David and Bruna ended. There were certainly plenty of opportunities before then
The court records of this case contain more than two thousand pages, without a single accusation – see, it’s not about the absence of proof, it’s about the absence of accusations – that would have indicated that David is an unfit parent.
Sean’s maternal grandparents presented sworn statements to the Superior Court of New Jersey, giving their version of the events.
They declared they had no knowledge of marital problems in their daughter’s marriage, and stated they fully trusted Mr. David Goldman. These statements are part of the court records in Brazil and the USA.
Sean’s maternal grandparents traveled to the United States about one year after Sean’s abduction to testify for the records due to the pending court order. In their testimony, they did not state anything that calls into question Mr. Goldman’s conduct as a husband and a father. Once more, they stated they trusted David Goldman. The transcript of this statement is also in the court records.
But the most reliable witness Mr. Goldman had in the Brazilian and US courts was Bruna, his son’s mother.
Mr. David Goldman has recordings of telephone conversations with Bruna which took place after Sean’s illegal removal, i.e., after litigation had begun. These recordings are also in the court records, and from them I’ll quote a part as an example of the dialogue between the recently separated couple.
“David: This is the point, Bruna. Marriages have their ups and downs… when we started dating, your father and mother, you mother was going to leave him. Marriages have highs and lows, times of crisis, times without crisis, and you said your love turned into friendship…hey, if you’re someone’s friend, there’s still love, Bruna. People are…
Bruna: No, this is not… this is not a man’s love, this is not love like a man. My sexual feelings…didn’t develop and now they’re crushed. That’s enough for me. It’s enough. It’s hard, very hard…
David: That’s right, Bru.
Bruna: I really think you’re a great guy. You’re a wonderful father and… I could never have anyone better. And I’m very happy we had a child together, I’m very happy you were his father…”
In another part of this conversation, Bruna complains that her husband didn’t pay enough attention to her. And why is that? Bruna accused David of only having eyes for Sean, completely forgetting the little boy also had a mother. How ironic, considering that now this father is accused of not loving his son…
Please note we’re not making unsupported statements. We’re not narrating our own version, as Mr. Joao Paulo does in his letter. These conversations took place, have been recorded and are part of the court records. Everything is proven. These are not speculations.
On another occasion, Bruna, already in Brazil, sent an email to one of her friends, stating once again:“David is a great guy and I do not regret a single minute, but our love story had ended… I feel really bad for David because of Sean…” The message is also in the court records.
Although Bruna never traveled to the US to testify, she presented a signed declaration to the Superior Court of New Jersey. In this declaration, once more, she makes no accusations about her child’s father. On the contrary.
Ironically, yet again, one of Bruna’s complaints to the New Jersey court was that David and Sean were building a “best buddies relationship” while she, Bruna, didn’t think it was the ideal relationship between father and son. This is another proven fact. This declaration, written and signed by Bruna, is also in the court records.
Indeed, one must note Bruna really complained about having to work two shifts to help pay the bills. Even though working to help support the household is a reality for 50 million Brazilian women, Bruna was not comfortable with that.
Yet Bruna, in the same declaration, complains about another issue: she complains that one of the reasons that contributed to her wish to separate was the fact that her husband, on the weekends, would go to work on his boat at 4am, only returning at night.
The ironies continue….
Bruna left David, accusing him of only caring about their child, of only being Sean’s “best buddy” and forgetting about her as the mother. Now, in the search for his son, David is accused of not loving him.
Bruna left David accusing him of working too much instead of giving her the kind attention she expected. Now, in the quest for his son, David is accused of being a “…lazy husband…” and a “…jobless American…”
This is not all. A report from the Rio de Janeiro State Court, written in December 2005, states the following about Sean and his father:
“…One perceives that Sean shows interest in being with David, referring to same with very positive attitude…”. This document is also in the court records.
David is even accused of extortion. He’s accused of demanding US$150,000 from Sean’s maternal grandparents, in exchange for the removal of “…unfounded accusations of kidnapping…”. He is also accused of larceny and check fraud. He’s accused of forging checks and cleaning out Bruna’s checking account after she came to Brazil.
Let’s look at the facts to verify if they support Mr. Joao Paulo’s story.
In the US, David also filed charges against Bruna’s parents (and he’s the one accused of forfeit…). David stated that Sean’s grandparents were giving Bruna financial and emotional support after Sean’s removal. After all, Bruna was living in her parents’ home in Brazil. How could they allege they weren’t involved? If, from a humane point of view, it was perfectly understandable that the parents were harboring their daughter, that doesn’t mean that from a judicial point of view there wouldn’t be consequences.
In December 2006, two and a half years after Sean’s removal to Brazil, on the date the case against the grandparents would go to trial, the lawyers representing Bruna’s parents offered to make an agreement with Mr. Goldman. They offered a payment of $150,000, in exchange for the removal of their names from the lawsuit.
David accepted, against his will. At that moment, there had been two and a half years of judicial battles. They were very expensive judicial battles on two continents, including international trips. The agreement was signed and, of course, David noted in the court records that the lawsuit pertained to Bruna, while the case dealing with Sean’s custody and return to the US would continue separately as planned.
If David had not made that deal, he most likely would have given up fighting for his son. If he had not made that deal, he would not have had the financial resources to keep battling for Sean’s return. He would have lost to the superior financial power of his ex-wife’s family.
This is the truth about that agreement: it was an act by which the financially superior party used its economic power to exclude itself from a lawsuit, considering that the financially weaker party needed resources to keep fighting for a greater cause.
But it’s possible to go a bit further. If the complaints against Sean’s maternal grandparents were so unfounded, as they say, why was the agreement made? Why didn’t they wait for the American judiciary to throw out a lawsuit that was so absurd?
Indeed, it was not necessary to wait much longer, since the agreement was made on the day the trial would take place. If the complaints were so unfounded, why did they pay US$150,000 to put an end to it, considering that such complaints, if in fact absurd, would have been rejected by the court and the trial would never have taken place?
I’ll let the reader conclude which side immorality is on.
In the same lawsuit filed in New Jersey, David asked the court to freeze his ex-wife’s and her parents’ assets in the US. It was done for the purpose of guaranteeing, in the future, the approval of a possible court order that would require the family to reimburse his legal costs and fees.
On August 26, 2004, the Superior Court of New Jersey granted David’s request. They froze all of the family’s assets in the US, including a house worth US$500,000 and Bruna’s checking account. The balance, at the time, was US$3,900.
If David had any intention of cleaning out his ex-wife’s checking account, would he have asked the courts to freeze it? What sense does that make, if the intention was to withdraw from it? It would have been much simpler not to do anything, not mention the accounts and leave them free to be used.
But there’s more.
The American court fined Bruna for failing to comply with the order to return Sean to the US. Until August 2005, the fines were US$1,000 per month. After August 2005, the fines were US$1,000 per week.
Bruna was also ordered in August 2005, i.e., after only one year after the case, to reimburse Mr. David Goldman roughly US$68,000, to cover legal costs and fees. Let’s do the math: that would be U$12,000 in fines between August 2004 and August 2005. Between August 2005 and August 2008 (the month Bruna passed away) it would have been more than US$156,000 in legal costs and fees whose restitution was ordered in August 2005. So we are up to US$236,000, not to mention all of the costs and fees incurred after August 2005, and not mentioning any costs related to Brazilian courts and international travel.
If this father had any intention of obtaining financial gain, wouldn’t it have been much more lucrative simply not to make an agreement and, instead, ask the American court to sell Sean’s grandparents’ house that was frozen by the courts and worth roughly US$500,000?
All the amounts above referenced, as well as the freezing of the assets, are supported by documentation in the court records. Once more, there’s no room to speculate. We’re stating facts, verified facts.
With respect to the allegations that Mr. Goldman is selling mugs, pins, aprons and similar items, well, anyone can access the website created by David’s friends on the internet and verify there is no such thing.
The allegations that Mr. Goldman is living “for free” in a residence purchased by Bruna also does not correspond to the verified facts in the court records. Bruna herself, in her signed declaration presented to the Superior Court of New Jersey, states that the couple’s home was purchased in part by an amount given to the couple by her parents as a wedding gift, and in part with the amount that belonged to David after he sold the house he previously resided in on his own. Once more, this document is in the US and Brazilian court records.
There’s also the pathetic inheritance accusation..
Mr. Joao Paulo says that after Bruna came to Brazil, she became a successful businesswoman, and that Mr. David was only interested in controlling the inheritance to be given to his son Sean.
Well, first of all, given the fact that David has been insistently pursuing the return of his child is more than enough to prove this allegation is not valid. If David was already fighting for Sean when Bruna was alive, how can someone state that the father only wants Sean’s company to control the inheritance the minor will receive? It doesn’t make any sense.
But if Sean’s inheritance is such a strong issue for Joao Paulo and his family, they can relax. Mr. David Goldman is not interested in any assets his ex-wife owned in Brazil. Please find the legal way that best suits you, write a document if you wish, and Mr. Goldman will sign it, allowing any assets Bruna accumulated in Brazil to be controlled, and/or transferred to someone of your trust.
It’s not about money. Finances are not important.
Mr. David Goldman, since the beginning of his crusade, has spent more than US$360,000 trying to bring his son home. He has been to Brazil many times, alone and accompanied by his father, mother and friends. All you have to do is check the stamps in his passport.
He was never allowed to see his son. He was never authorized to do such thing. And when he finally was authorized, he wasn’t able to see his son.
Mr. Joao Paulo fails to mention in his correspondence to the Council that, last October, the Federal Court of Rio de Janeiro granted visitation rights in favor of the minor’s father. Since then, the decision allowed Mr. David to be with his son anytime he was in Brazil, from Friday at 8pm until Sunday at 8pm.
On October 16, 2008, a Thursday, Mr. Joao Paulo appealed this decision. His request was only partially accepted by the TRF-2. They maintained the visitation rights, but determined that the visit would not start at 8 pm on Friday, but instead at 8am on Saturday. The TRF also determined that the child could not be publicly exposed during visits, or the right of visitation would be revoked. On Saturday, at 8am on October 18, 2008, Mr. David Goldman presented himself at the location determined by the judicial decision, Mr. Joao Paulo’s residence, accompanied by 2 court officers, 2 federal agents and a bodyguard.
Sean wasn’t there. Although the court ordered that the minor would be at his father’s disposal on that day, at that time and at that place, Mr. Joao Paulo, according to information [given by the family], had taken the child away from Rio de Janeiro
In the days that immediately followed, Mr. Joao Paulo petitioned the Federal Court, justifying his absence. He stated he did not know the visitation would occur on Saturday, October 18. However, according to court records, Joao Paulo had been served and even had time to appeal the decision.
Joao Paulo added, indeed, that it was very lucky Sean wasn’t there. His father, a profiteer, had shown up with more than 10 journalists, reporters and TV cameras. Joao Paulo claimed pedestrians thought they were shooting a soap opera since there were so many cameras and crew members. With this excuse, Joao Paulo, based on the TRF-2 decision that forbids public exposition of Sean, pleaded the visitation rights should be revoked.
When called by the Federal Court to explain who was present on the day of visitation, the court officers testified there was not a single camera, not a single reporter, not a single journalist with Sean’s father on that day.
Joao Paulo was convicted by the Federal Court of litigation with malicious intent and an act offensive to the dignity of justice, all in a deliberate attempt to alter the veracity of the facts. Copies were expedited to the Federal Public Ministry, so they can investigate whether the crime of disobeying a court order was really committed.
After all this, I ask: can you trust the statement that Sean was always at his father’s disposal? Is this behavior consistent with someone who would have never created obstacles to the contact between father and son?
No, it isn’t. And the Brazilian relatives are still imposing restrictions to the father-son relationship, even after a visitation agreement was reached and celebrated during a tense 6-hour hearing at the Superior Court of Justice.
Although the agreement awards David the right to be with his son between 8am and 8pm, every day, every time he’s in Brazil, Mr. Joao Paulo has recently pleaded at the Federal Court that the father could only see his son on March 12 and 13, 2009, when he was in Brazil, after 6 pm due to the boy’s school commitments. The Federal Court of Rio, obviously, dismissed Mr. Joao Paulo’s request, based on the argument that missing 2 days of school would not cause any harm to the boy, if one considered the benefit of his reestablishing a relationship with his father.
Although Joao Paulo’s request was rejected, he did not stop his attempts to interfere in the visitation and contact between father and son. The agreement has no restrictions, and it does not forbid David to go out with his son, but Mr. Joao Paulo and the Brazilian family do not allow the child to leave the grounds of their luxury condominium. The agreement does not require supervision, but Mr. Joao Paulo and the Brazilian family impose the presence of a third person. Mr. Joao Paulo and the family even had this third person carry an audio recorder and remain only two feet away from father and son, not giving them any privacy for a second, and shamefully intimidating the child. Mr. David Goldman has recorded a brief video, in which you can see the “supervisor” and the recorder being used, one more fact that we can support with proof.
I ask again: is this the behavior of someone who never tried to tamper with the father-son relationship?
Mr. Goldman had tried to make deals with his ex-wife’s family. Since the beginning, there were several approaches made for visitation. But the Brazilian family has never permitted them.
First, they stopped answering the daily phone calls the father would make to his son.
Sean’s maternal grandfather, testifying before the New Jersey courts, stated with frightening indifference, that his attorney had alerted him to the fact he was not obliged to speak to someone who was suing him. The grandfather then said that since he became aware of that fact, every time he heard Mr. Goldman’s voice on the phone, he’d immediately hang up.
Once more, it’s not about speculations or empty allegations. These are all facts supported by the transcript of the grandfather’s testimony. The documents are part of the court records.
On January 18, 2005, Mr. Goldman’s American attorney sent a letter to the maternal family’s attorneys, stating the child’s father couldn’t manage to speak to his son: one more fact with documentation to prove it.
The family started to reject gifts the father sent to Sean. Packages were returned to the US, and they can be shown to whoever wants to see them. The photos of these items are in the court records in Brazil and the US. More proven facts.
There were proposals for visitation in a third country, in a neutral environment. Every agreement made with the condition that Mr. Goldman give up the fight for his son. This was back when the family didn’t simply reject the father’s initiative, without any answer, polite or impolite, consistent or inconsistent.
As soon as he learned about Bruna’s death, Sean’s father got in touch with the maternal family, once again trying to reach an agreement. He opened the doors of his home, for Sean to return accompanied by his grandparents and even his stepfather. He offered a transition period, during which the contact between father and son would take place in Brazil, with a later trip to return to the US.
Everything was refused by the maternal family, who would prevent even the slightest contact between father and son. Indeed, the maternal family failed to inform Mr. Goldman about the passing of his child’s mother. Mr. Goldman learned about the tragedy from Brazilian newspapers. The family failed to mention the death of Sean’s mother even in court, presenting a petition before the Federal Supreme Court a few days layer, without even mentioning the fact, as if it had never happened.
International child abduction cases are difficult. People who work on these cases – like Mr. Joao Paulo, for example – know it’s not unusual that the left-behind parent spends years without contact with the child. It’s a painful experience, and if you did not live through it, you will never fully understand it.
But to be left behind, to have a child ripped from your arms, to fight the courts for years, and even to be called a bum, profiteer and a crook, is beyond one’s imagination.
Mr. Joao Paulo proudly states – in an untruthful manner, by the way – that Sean only vaguely remembers his father, when he stated that Sean did not speak English and when he stated that Sean has no memory of his life in the US. It’s very sad that it’s this way.
Sean should be encouraged to speak English and remember the place where he was born. He should be encouraged to reestablish a relationship with his father and practice his American citizenship. Nationality, culture, language and family relations are the inalienable rights of every child as stated in the Convention of Children’s Rights, of which Brazil is also a signatory.
It’s unfortunate that the Brazilian family celebrates the fact that Sean is being deprived of these fundamental rights, of these rights that truly help to construct a person, in the full meaning of the word.
The letter sent from Mr. Joao Paulo to this Council mentions Sean’s abduction to Brazil as a mere detail, as if the international removal of a child were just a simple act, without importance.
It’s not. It’s very serious.
So serious, it became the basis of an international convention. This international convention is amongst the most popular on the planet, which today includes more than 70 signatory countries.
Strictly speaking, it is difficult to understand the discussion taking place today.
Sean lived with his mother and father. The mother, against the father’s wishes, took him away. This father has done everything he could to take his child home. The mother dies. And the child does not return to the father.
It’s said that the best interest of the child, after so much time passed, is to remain in Brazil with the stepfather.
The “child’s interests”: this phrase is being used, in this case, to justify all sorts of arbitrariness about the father’s rights, which are as constitutional as the full protection of the child’s rights.
In the beginning, it was not acceptable to return Sean to the US because it was a preliminary decision, and the child’s interests required caution.
Then, it wasn’t acceptable because, even if it was the final sentence, too much time had passed, and the child’s interests indicated the need to maintain things as they were. Later, the child’s interests did not allow for the rupture of the bond created with the maternal family, even though bonds of the same nature, with the paternal family, had been broken unjustifiably by Sean’s mother, without reprimand.
Now, finally, it’s claimed the minor has a half-sister, and the child’s interests indicate the two children shouldn’t be separated. In fact, they claim that the sister represents the mother the minor recently lost, and the child’s interests do not allow the mother’s image to be taken away.
It’s odd that the child’s interests in growing up and living with his father were never considered.
To be honest, the child’s best interest, the only indisputable interest of the child, was to not be removed against his own will, against his father’s will and against the law, from the home he always had lived in since his birth.
The child has the fundamental right of full protection. What about the father? Doesn’t he have the fundamental right to effective jurisdictional custody? What effective custody is one denied not because of the invoked right but due to the slowness of a decision?
Doesn’t the father have the right to rapid due process? What rapid case lasts 5 years?
The child has, indeed, the fundamental right of full protection. But doesn’t the same constitution that grants the full protection prohibit self-protection? Doesn’t it institute the state monopoly of force, preventing one from taking the matters into his own hands?
But until now, the Brazilian judiciary has protected the person who used self-protection to protect her own rights, the one who went ahead and took the child herself, against the applicable law and the institutional forms of settlement disputes.
The one who sought refuge in the public power, the one who sought refuge in the institutions, the one who had so much respect for his own child to try to resolve the problem through the use of institutional means for the settlement of disputes, well, he doesn’t matter much. He’s a gringo, a bum, a crook and a profiteer.
They say the interest of the child indicates that things should stay as they are. In Brazil, the interest of the child seems to indicate the best thing for the child, already orphaned by his mother, is to make him orphaned by his father.
It also says that the child’s best interest is also for him to be heard. How convenient. Sean has been under the care of a family for nearly five years. In the eyes of that family, his father is a violent gringo, a greedy bum, profiteer and a crook. I wonder if in these conditions an 8-year old child can freely express his opinions. I wonder, can we really let an 8-year old child choose his own future?
This whole discussion is indescribable.
This child will never be able to see his mother again. But he has a father. And he has his entire lifetime to rebuild a paternal relationship that was taken from him against his wishes. His mother’s company, tragically, has been lost forever. But his father’s has not. There’s a lot of time. There’s an entire lifetime.
This letter is already too long; it could end here. But Mr. David Goldman needs to clarify a few other things.
Mr. Joao Paulo, as soon as Bruna passed, initiated legal proceedings to be recognized as Sean’s new father. Mr. Joao Paulo intends to remove Mr. Goldman’s name from Seam’s birth certificate, replacing it with his own. Sean Richard Goldman would become Sean Bianchi Carneiro Ribeiro Lins e Silva. His paternal grandparents would no longer be Mr. Barry Goldman and wife. They would be Paulo Lins e Silva and wife.
One does not need to be versed in civil law to realize this plea is rigorously and strictly impossible from a judicial point of view. There are ex-wives, there are ex-husbands, but ex-parents do not and cannot exist. Nevertheless, the request was received and processed by Rio de Janeiro State Court.
But the question now is: how long has Mr. Joao Paulo Lins e Silva lived under the same roof as the minor Sean?
In the aforementioned plea, filed on August 28, 2008, Joao Paulo stated he had been living with the child for over four and a half years. However, four and a half years before August 2008, Sean was still living in the USA.
In a hearing at the Superior Court of Justice, on February 6, 2008, Joao Paulo and his attorneys stated that the minor had been living with the stepfather for five years. A few hours later, at the end of the hearing, these five years had turned into three. The hearing was recorded and the information can be verified by whoever wishes to verify it.
But, in the records of the previous cases between Bruna and David, there are reports made by the Rio de Janeiro State Court stating that in December 2005, Sean lived exclusively with his mother in his grandparents’ house.
Someone, therefore, is not telling the truth.
The expert from Rio’s state court stated that in December 2005, Sean lived with the mother and grandparents in the grandparents’ home. Joao Paulo, in the letter sent to this Council states, “…in less than 6 months after we were reunited we were living together…”, which means, still in 2004.
I repeat: someone is not telling the truth.
Trusting the word of the expert that, at least in theory, should be impartial, we can deduce that, at most, Sean has been living with his stepfather since January 2006. Bruna passed away in August 2008.
The discussion here, then, is about excluding a father from Sean’s life, the father who raised and educated him until he had the child taken from him against his will, a father who has been fighting for Sean desperately and tirelessly for almost 5 years, so we can leave the child in the care of the stepfather with whom Sean, at the time of the mother’s death, lived with for two and a half years?
Is this what it’s all about? As incredible and absurd as it seems, it is. This is what it’s all about. Joao Paulo and the maternal family would have us believe this is a battle between the US and Brazil.
But that’s not true, it’s much simpler.
It’s a matter of a child who was taken from his father against his will. It’s about a father who did all he could, who faced countless difficulties, like distance, language and culture, to have his son back with him. And then, after Bruna’s death, he must have Sean back with him, regardless of everything he’s been through.
Joao Paulo says the government is out to get him. He says the AGU, funded by taxpayers, is out to get him. A certain Senator demanded, in a Senate tribunal, that the Executive branch must stay away from the case. The Secretariat of Human Rights will be called to provide explanations, all due to the lack of information.
There is an international convention about this issue. The Brazilian government independently assumed, by the President and approved by the House of Representatives, the international responsibility to promote the repatriation of children in these conditions. It’s up to the government to comply with their obligations. It’s up to the government to request the repatriation of the minor, and the legitimacy to do so has been confirmed not only by the Federal Court of Rio, but also the Superior Court of Justice in Brasilia.
And whether the Convention is applicable or not will be decided on a case-by case basis by the Judiciary. If Sean is to be repatriated or not, the Judiciary will decide.
Mr. Joao Paulo knows very well nobody is out to get him. He knows well that today, the AGU sponsors more than 40 cases which seek the repatriation of minors, protected under the Hague Convention, to many countries. And he knows this well because he is working on at least one of these cases.
Until very recently, Mr. Joao Paulo was working on the repatriation of a minor proposed by the AGU, in custody of a Brazilian mother and resident of Rio de Janeiro. He was representing the foreign father. He earnestly argued the accuracy and ease of the Executive branch’s involvement in the case, as well as the enforcement of the Hague Convention.
There’s no pursuit of Joao Paulo Lins e Silva. The Executive is acting in compliance with an international duty freely and independently recognized by the Federative Republic of Brazil, and under the protection of the principle of impersonality.
It’s the right of the Executive to request repatriation when it comes to the child of Mr. Joao Paulo’s foreign client, and it’s also the right of the Executive to request the repatriation of the son of Mr. Joao Paulo’s wife. And Mr. Joao Paulo has the right to defend himself. And it’s up to the judiciary to say who’s right.
Let’s not lose focus. The ones who intend to keep Sean in Brazil are trying to divert attention, taking the spotlight off what really matters, what’s really relevant. To solve this question, one must only investigate whether the removal of this child to Brazil was lawful or illegal, from the point of view of New Jersey legislation, where the child resided.
If the child was taken illegally from the United States, then all allegations formulated by the Brazilian family will be investigated in the United States, the only country according to the Hague Convention, that has jurisdiction in the case.
Now that the facts have been restored, and focusing on the real issue, I request this council, always respectfully, to adopt the measures deemed appropriate to the case.
Ricardo Zamariola Junior
OAB/SP nº 224.324