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
Page 3 of 3
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.
