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Equipe eyeLegal
Rede Global de Direitos Civis
January 2009

The Paternity Fraud Industry
Know everything about how they take away the people’s children with
“marmalade”** in the Brazilian Justice

Note: In Brazil, “Marmalade” is slang, used when you want to say that something is not serious, a joke, a circus, confusion, mess

 

1. Temporary Custody under Presumptive Paternity

n excess of liberalism in family law has now become so glaring as to threaten the very foundations of our society. The public has a poor grasp of the developments in question, for some of them are bizarre, others repugnant, and still others, hilarious. An example of the latter is a recent bill, which – after running afoul of a presidential veto which knocked out half its content – infringes the very notion of equal treatment by eliminating the only right the presumptive father might have had in the proceedings. After all, there is no way for anyone to know who the true father is when, not infrequently, the mother is herself mistaken.

Unwarranted equivocations and shifts of meaning on the topic are not grasped by the public in Brazil. The very Constitution, which places masculine and feminine articles before “man” and “woman,” respectively, is cited as though “between man and woman” were generically understood. It is precisely the masculine and feminine articles contained in the original language, that make all the difference, in the sense of making it explicitly clear that what the law provides is that the union of two opposites – that specific union and no other – is what constitutes a family. Outside Brazil that happy situation was short-lived.

Out of the turmoil emerges the apocalyptic theory of “social” and “affective” entitlements to paternity, whereby a request is made that your child’s birth record be legally falsified, and your name replaced by some other name. Yet this is not adoption, for adoption is provided in specific cases. It is an illegal form of adoption, whether the guise be Temporary Custody under Presumptive Paternity or Presumptive Custody under Temporary Paternity, for in the absence of any impediment, the best interests of a minor child lie with the child’s natural family.

This sort of illegal adoption is practiced as follows: the natural father is alienated by an indefinite grant of temporary custody to someone else, continuances postponing a decision and regular visitation rights nullified with no foundation whatsoever – while all appeals are denied by the very same Superior Court Judge who issued the order in the first place.

Appearances suggest that the destruction of the family is indeed the primary thrust underlying the transformation unfolding before our eyes. That, together with the increasing impact of the media is so shifting the behavior of ordinary persons that men have begun behaving like women, and women to act like men.

2. Why it doesn’t work

According to Consultor Jurídico”, in an article whose title in English might well be “International Family, the phenomenon is called an “Action Declaring Social and Affective Paternity, Joinder for Child Custody, and Petition for Anticipatory Relief” – a Frankenstein patchwork of legalese.

The purpose of a declaratory action is to state whether or not a given legal relation or situation exists; to make a declaration. But where rights are concerned, a right only needs declaring if it doesn’t exist. It will only come into existence if a court finding so declares… declaratory, ergo, declaration. Does that make sense? Yet all we have are uncertainties. Otherwise we could say, like David, unhand my boy. I am the father, here is the birth certificate, and all doubts would be laid to rest. All indications, however, are that these proceedings are nothing more than delaying tactics, so that while arguments unfold as to who is or is not the father, the child is being conditioned to recite to the judge that he wishes to remain with someone that is not his father.

If a thing does not exist it cannot be put on a fast track. There is no such thing as an “anticipatory father” or “temporary father.” Nor can such a thing be scheduled, for that would be illegal, given the damage wrought by its irreversible nature. Observe that with every passing day, each passing year, the child’s perception of its father is corrupted toward the belief that the natural father is not true, but that the anticipatory, make-believe father, is.

Although there is nothing there but the mere possibility of a future ruling on the merit of this “socio-affective paternity,” after five years of teaching the child to recite that it wants to stay with the stepfather, the damage done to the actual father and son will eventually be irreversible. That may suit the best interests of the judge, but certainly not of the child whose family and rights are thereby alienated.

The problem in all such cases is that the grant of custody is temporary and so must be renewed. It is as though paternity were provisionally asserted and reasserted ad infinitum so as to alienate the child from its real father, thereby bringing about in practice something the law does not yet provide. No such thing actually exists inasmuch as the stepfather has no rights as such. He possesses no more than a tenuous expectation with regard to some potential entitlement whenever the question is ultimately decided. In the absence of exceptional circumstances such as would preclude the child’s living with its natural father, there is, generally speaking, no social and affective entitlement to paternity in jurisprudence, so that it cannot preempt paternity as defined by law and the facts of nature. Thus custody cannot be granted to some outside party against the father’s wishes, and the thing is therefore a fraud.

The danger of irreparable harm arises from the irreversible effect of a rush into guardianship. It is pointless to cavil – alleging a growing fondness – or to argue that the one paying support is exercising custody, albeit illegal, makeshift, provisory… The resulting harm to the natural family is irreparable and irreversible. The Code of Civil Procedure provides, in its Article 273, §2, that “No anticipatory relief shall be granted when there is any danger that such preemptive grant might be irreversible.”

One need only add that making a preemptive grant which the law forbids while denying the natural father visitation rights makes it obvious that the purpose of these proceedings is to exclude the true father, the paternal side of the family in its entirety, and create obstacles to the enforcement of an international search warrant – in violation of the Hague Convention on the Civil Aspects of International Child Abduction. Nobody – steeped in our Latin culture – wants any part of a stepfather forcibly taking a child from its father. A father will bring about an upheaval for his child…

Things have come to such a pass that a bill being debated by Congress in Argentina, by initiative of the Association of Fathers Alienated from Their Children (Apadeshi), would instruct Argentina’s Ministry of Justice and Human Rights to create a “National Registry of Persons Obstructing Parental Ties.” The same organization is pressing forward with another initiative, this one to provide criminal sanctions against anyone barring persons who do have visitation rights, as obstructive of their ties to minors or handicapped persons. Nowadays, this is one of the most frequent violations of human rights.

Even if there were no unsettled issues from so complicated a divorce, the substantive fact is that mere affinity (Civil Code established parental relation between stepfather and the son of the spouse) will not suffice in opposition to the rights of father and child. What stands in the way of the father’s right is no theory calling for social or affective paternity, but rather, the anticipation of custody, granted illegally, which keeps the child trapped in Brazil. Hence, the theory of social and affective entitlements to paternity is no more than an argument – a justification which fails the test of law – in a petition for preemptive custody. Providing the foundation for the farfetched supposition that anything so absurd as coercive adoption will find favor in the courts, we have precisely the time elapsed, upon which sandy foundation a grave injustice is to be erected. It is manifestly clear that provisional custody may not be granted in these kinds of proceedings, because it cannot wait indefinitely for a ruling on a purported second paternity [sic]. In all such cases, custody would only be awarded after judgment of the merits, since it is through custody that those exercising it stand in opposition to the parents. It is not something that can be petitioned for since there is no way to restore the passing years, in which injury is done to the very family the government is under a special obligation to protect.

Hence, keeping the minor child in Brazil against the father’s wishes constitutes illegal coercion and abuse of power.

3. Is the judge committing a crime?

It would be reckless, even dangerous to discuss criminal aspects of the specific case. This is not the proper place and, furthermore, we do not have sufficient knowledge of the details of the proceedings to bolster such an affirmation. However, there is nothing to stop us from pointing up clues which would apply to any case in which custody becomes an issue. Added to the custody issue we have the arbitrary barring of communication with one or both of a child’s biological parents, absent legal grounds on which to base such segregation of a minor from its natural family:

1. Granting of anticipatory relief in violation of Code of Civil Procedure Article 273, paragraph 2;

2. Granting custody of a minor child to someone who has no natural kinship with that child or teenager, when the minor does have a living father and/or mother fully capable of assuming parental authority:

3. Granting of custody, under the above circumstances, to a person of some influence in judicial circles, as well as by corruption, bribery or political logrolling;

4. The outlandish petition that natural family ties, well-established in law, be undone and replaced pursuant to some rashly-contrived theory having no precedent in jurisprudence, and self-defeatingly misapplied to boot;

5. Having other pending cases or connection with other actions already in proceedings in the same or in a number of different courts, relating to the same matter, over the same child, and filed by the same parties or featuring one of the natural parents as either petitioner or respondent;

6. Absolute lack of jurisdiction of the State court granting custody in a case that is Federal by dint of a pre-existing search warrant issued by international legal authorities based on the Hague Convention on the Civil Aspects of International Child Abduction;

7. Issuing a blanket order directed against the press to do or refrain from doing, that is not part of the proceedings, under penalty of spectacular fines.

All of these things, taken together, doubtless justify the gravest sort of misgivings with regard to these court decisions, whenever such a measure seeks to arbitrarily segregate a child or teenager from its natural family, that is, the father and/or the mother. That much is obvious when even visitation rights are denied, and in camera proceedings distorted into lending their mantle of secrecy to a cover-up of a monstrosity abhorrent to society.

Take, for example, the Cássia Eller case. Despite press coverage both broad and deep, nary a voice was raised to shield the image of the minor child whose family drama was spotlighted by the audience-hungry media. In the Eller case, the press disclosed that the court’s decision had the support of the family of the deceased mother, and that the father was also deceased as of five days prior to the birth of the child.

Any student of civil procedure knows that the rulings of a case are binding only upon the parties thereto, and for that reason the judge hearing the case cannot issue a gag order in the general direction of the press, for it would have no legal merit. The “press” is neither an individual nor a party to any lawsuit. Should an agency of the press abuse its right to publish specific information, the injured party should then file suit against that particular publisher of information. There is no way to preemptively bind the press under prior censorship by fiat. The exact opposite is true, in that the press should never be cowed into silence in the face of injustice out of fear of some big shot – with or without a gavel.

Furthermore, whenever a child is born, a record of that birth is filed wherever the birth took place. If it is outside of Brazil, such a record is routinely transcribed to a Brazilian Civil Registry Clerk:

PUBLIC RECORDS LAW – Law No. 6015/1973

Article 32. All birth, death and marriage records of Brazilians in foreign countries are deemed authentic under the laws of the place where they were recorded, once their certificates have been duly received or certified by consuls, pursuant to consular regulations.

§1 All records affected by this article must, if they are to become enforceable in Brazil, be transcribed at the 1st Registry Office of the registrant’s domicile, or the 1st Registry Office of the Federal District, if said domicile is unknown, or rather, through a certified copy the consuls are required to forward through the good offices ofthe Ministry of External Relations.

§2 Children born abroad to Brazilian parents not stationed there in government service, if registered at a Brazilian Consulate or not registered, and who take up residence within Brazil before coming of age, may apply, at the court of their domicile, to have their birth record recorded in book “E” of the 1st Civil Registry Office.

§3 The birth record and its corresponding birth certificates, recorded as set forth in the preceding paragraph, shall bear a statement that they are valid only as proof of Brazilian nationality, through the fourth (04) year after attaining majority.

§4 Within the four year period following attainment of majority on the part of the interested party mentioned in §2, that individual may declare in favor of adopting Brazilian nationality before a federal court.
If the application is granted, that shall be noted in book “E” of the 1st Notary Office where the person opting for citizenship is domiciled.

§5 Should the choice mentioned in the preceding paragraph not be forthcoming, the clerk shall strike from the record the provisional status recorded pursuant to §2.

There is no way, in Brazil, to alter the birth record of anyone born in a foreign country. This is because the legal authorities here have no powers abroad, and the Brazilian transcription is based entirely on the original foreign record. Even on the unlikely supposition that our Judiciary were to uphold decisions as absurd as in these cases, no such order would be accepted anywhere by the local courts other than as an attempt to defraud. Hence, John Q. Citizen, born on such-and-such a date at such-and-such a time, at this birthplace, son of his father and mother – is somewhere a matter of record which cannot and will not be altered. Any ruling here that such truths are to be altered in time and space would amount to an instance of procedural pettifoggery.

The law forbids a judge to lie in proceedings. If and when a judge was to lie – and place the lie on the record – he would be guilty, in theory, of imposture and using fake documents. To that one might add fraudulent abuse of authority and betrayal of the public trust – this latter if the evidence showed the judge had so acted for personal gain or the gain of another.

Special rules of procedure apply to custody cases involving minors, and are set forth in the Child and Teenager Statute. These rules, incompatible with ordinary paternity actions, spell out how the procedure is accomplished and describes its various stages. A petition for custody is an express, summary affair which calls for a speedy decision. It cannot be postponed until the child becomes a teenager, or the teenager an adult.

Herein lies the sham, precisely in the indefinite delays in the prosecution of a custody suit. Such a suit cannot be joined or bundled up with a paternity petition filed on social or affective grounds, for it involves placing the child in a foster home, that is, in the care of persons other than the child’s natural family – the custody of someone other than the biological father or mother.

CHILD AND TEENAGER STATUTE – Law No. 8069/1990

Article 19 – Every child or teenager is assured the right to be raised and educated in its family surroundings, and in special cases, with a foster family, where the child is assured a family and community environment, entirely free of narcotics addicts.

Article 25 – By natural family is meant the community comprised by the parents, or either parent, and their offspring.

Clearly, then, it is only in exceptional cases that child or teenager may be placed in a foster home. The boy has a father. It is precisely for that reason that the legal requirements for preemptively granting custody in a paternity petition are absent. De facto and de jure custody was exercised – not by the stepfather – but by the late natural mother. All of this has been thoroughly covered in the press.

4. Brazil does not apply international treaties

Early in 2005, United Nations Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, arrived on a 12-day assignment to evaluate our Brazilian system of justice. One of the recommendations in his Report was precisely that international agreements on human rights, ratified by Brazil, be upheld by judges, prosecutors, attorneys and public defenders.

This came about because in the Brazilian system of justice, provisions for human rights are largely unknown, not enforced, and not satisfactorily taught in the greater part of our law schools. One of these examples is the new law on videoconferenced interrogations and hearings. It provides that you may be arrested and charged without ever standing before a judge. Judicial interrogatory is one of the first steps of the criminal proceedings.

There are many judges who do not feel any obligation to enforce human rights, whether out of unfamiliarity with the subject, or the fact that many pass judgment on the person rather than on the facts while interpreting the law. Here, as in many other countries, the law is not applied impartially to some people. Judges feel at liberty to do as they please, because ingrained in our culture is the expectation that the authorities, or the persons wielding power, will be protected no matter what. Thus, for a judge to be sent to jail in Brazil you have to have video showing the judge actually killing someone, or the press would have to disclose his involvement in a scandal involving organized crime and the outright sale of court rulings.

One of the primary conclusions of the Despouy Report was the high level of lack of exemption of the Brazilian Justice. To this we might add that, in Brazil, one can argue year in and year out over a matter that is entirely settled and not open to question.

Most notoriously in custody cases involving minor children, Brazilian courts are loath to respect the right the child has to live with its parents, and make their decisions by playing favorites or by request of outside parties. This happens all the time in Brazil, and not just in international cases. Many Brazilians find themselves in similar straits– perhaps because of a rich grandfather, or because the preacher is friends with the Superior court judge – maybe even because some politician asked someone or other, or because someone has pull with the courts. These are the harsh, through regrettable, facts. Appointees to the bench feel they can get away with breaking up families. They do not perceive that society has the will or the power to expose their wrongdoing and cause them to mend their ways. Non-Brazilians may well wonder: “but, what about the law?”

Whenever a local ruling flies in the face of international treaties – however inapplicable they may appear – even if only to lend force to local decisions, leaving the untangling to the higher courts, we take matters a step farther. They may well decide, by and by, that in view of the time elapsed while the child was here and now well settled-in, the situation is best left as it stands because that would be best for the minor child. What we’re trying to say is that, in choosing between a Brazilian mother and the Convention, it is easier to say, in our language, that the child should remain with its mother. But this is only so when there is a mother with whom to remain. If there were, some sense could be made of the ruling, and this sense will be greater as so young the child is.

Referring back to an earlier issue of Consultor Jurídico, in an identical recent case in the State of Pernambuco, Federal Judge Roberto Wanderley Nogueira of the First District court in Recife was quoted:

To him, ‘the freedom to make decisions within the judiciary – which is the root of what independence State personnel enjoy in the performance of their duties – and to uphold the law to the best of their knowledge and ability cannot, in this context, be taken to be an absolute and unlimited empowerment.’ He further stated: ‘These boundaries are ordinarily established by the logical principles of objectivity and reasonableness comprising the entire range of linguistic, ethical and communicative capabilities of the science of law in the setting of standards.’” – Consultor Jurídico, November 5, 2008.

We take this to mean that a judge’s power to rule has boundaries clearly established by ethics and by facts we logically and reasonably know to be true. Therefore, when reaching beyond the limits of what is true, or what is reasonable, neither the State nor the Judge has the authority to nullify the law, which in this case calls for returning the kidnapped minor to his country of origin.

The most important of these facts should at this point be mentioned. That is, in the case in Recife, the mother of the kidnapped German minor petitioned the state court for custody, and was granted temporary custody in the form of anticipatory relief. The State Court of Appeals vacated the ruling on the grounds that “Brazilian courts did not have jurisdiction to rule on the merits of the petition for custody, because one of the parties was a German citizen.” And point of fact, there were two German nationals, the child and the father.

In other words, the State court of appeals in Pernambuco found that the courts in Germany had jurisdiction to hear the appeal for custody. This was because the situation was the same as the case of David Goldman – one party being a foreign national, of the jurisdiction which by law and custom would prevail in the case of the kidnapped child. The key issue here is that the state Supreme Court decided it had no jurisdiction to rule on this matter. How, then, can the State court at Rio de Janeiro believe differently? The issue hinges on Brazilian federal law, which is the same in Rio de Janeiro as in Pernambuco.

Observe that the state Supreme Court in Pernambuco vacated the grant of custody to mother, imagine stepfather alike, furthermore, in that particular case, the Federal Attorney General’s Office upheld the Federal court’s ruling…

5. Actions for custody need the control of civil society

In Brazil today there are a number of associations of parents struggling for custody of their children. At the end of this article you will find links to some of their websites, as well as to other, international organizations. Most of the Brazilian associations, it would seem, base their actions on a passive, rather than active, approach. That was the impression we were left with after comparing the statements of many such entities. One of the more recent victories in their several battles was the institution of the Shared Custody Law – Federal Law No. 11,690 8/2008. Although doubtless a great step forward, it is hardly a panacea for all ills.

Observe that we now live in what it pleases some to refer to as the era of the “new family,” as if at the drop of a hat, one could get away with switching the societal foundations upon which ten thousand years of human history were erected. All of this comes in the wake of changes wrought by women’s liberation, which arrived in the train of the birth-control pill before ushering in declarations of gay rights, now demanding family status for homosexual unions, including marriage, adoption, and all the social rights heretofore granted only to heterosexual couples. Breakthroughs in assisted reproduction and even cloning technologies are sure to intensify the debate. We hold that everything like this is part of the same logics of the destruction of the family.

Hence the accelerating tempo in which it is repeated that “father is who cares”. But chanting does not make it so. A father is that true and natural father of another person – the blood of that person’s blood. Make no mistake about it; this is a scientific fact pregnant with deep spiritual content of which no judge has the power to alter. This is the family the government is obligated to protect. Simply the family, not some new, foster, or different family, but rather, the family that always has been.

We say this because there are entitlements which you may apply for, and then there are other rights to which you must demand. The right to live with their children and vice versa is one of those rights which only the true father has the power to demand – even in opposition to the political State, should its judgments stray from impartiality. Watch what happens when someone messes with the offspring of any animal in nature. The same holds true for humans.

In a case such as this, there is obviously no possibility of reconciliation or halfway measures. Where Solomon in all his wisdom to order splitting the child in half and giving a portion to each claimant, the resolution, today, would no longer apply.

What all of this means is that we are not faced with a problem of justice or law, but one of management. The most efficient way for people to protect themselves against all possible distortions within this context is the compilation of a listing of custody actions, incorporating all information provided by the parties themselves, in order to keep abreast of the most absurd cases, and bring proper legal and political pressure to bear whenever necessary. In all such cases, we expressly recommend to request criminal investigation, to the full extent of the law, of judges who illegally placed themselves between you and your children. We don’t bargain away the rights of a minor child.

Those who follow our efforts understand that our top priority is to provide legal protection to children and teenagers. That is the basis of our work, even if in order to accomplish it we must place Infancy and Youth Justice under a microscope, to assure it will be exactly equal to all men.


Copyright © 2009 Equipe eyeLegal  Global Civil Rights Network
Common people from all countries can be members.

http://eyelegal.orgfree.com/english/davidgoldman.html

Translation by J. Henry Phillips – BrazilianTranslated.com

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