8 January 2010
Article provided by Walling Berg & Debele PA
www.wbdlaw.com
In 1999, David Goldman married Bruna Bianchi, a native of Brazil. They settled down in New Jersey and had a child together named Sean. They seemed to have a picture perfect marriage. But then in 2004, Bruna took four-year-old Sean to Brazil on what was supposed to be a two week vacation. David was going to join them later in the week, but this never happened. Bruna contacted him soon after arriving in Brazil and told him she wanted a divorce and sole legal custody over Sean.
David refused Bruna’s demands and soon found himself embroiled in a five-year legal fight to return his son to the United States. His legal battle would reach the highest levels of the Brazilian court system, would involve high-ranking U.S. and Brazilian government officials – including President Barack Obama – and would receive national and international media attention before David would ever get the chance to see his son again.
Luckily for David Goldman his story has a happy ending. On December 24, 2009, Sean boarded a U.S.-bound plane with his father after the Brazilian Supreme Court upheld a previous ruling that Sean should be returned immediately to the United States.
However, not every parent who has lost their child to an international abduction gets such a happy ending. According to a 2009 report issued by the U.S. State Department, 1082 cases of out-going international child abduction were reported in the U.S. in 2008. During the same year, only 361 children in such situations were returned to the United States.
The Fight to Bring Sean Home
After Bruna informed David she wanted a divorce, David filed suit in a New Jersey court. The judge ruled that Bruna had illegally taken the child from the U.S. and ordered her to return to New Jersey with Sean immediately. Bruna, however, ignored the court order and received one of her own from a Brazilian court awarding her sole custody. Soon after, Bruna remarried a prominent divorce attorney named Joao Paulo Lins e Silva. David continued his custody battle with Bruna, but faced defeat after defeat in the Brazilian court system.
In 2008, Bruna died during child birth. David believed his custody dispute finally would end with her death, but it did not. Instead, Sean’s stepfather sought temporary guardianship of Sean and applied to have David’s name removed from the child’s birth certificate and replaced with his own. Silva hired more than 70 attorneys to help him keep Sean in Brazil and thwart David’s attempts to
return the child to the United States.
The Hague Convention
Within 50 days after Sean’s abduction, David filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction. This international treaty is meant to protect children who are abducted; when a child is taken illegally from one country to another, the treaty creates a procedure to determine which country has jurisdiction to decide custody.
Under the Hague Convention, the child’s country of “habitual residence” — the country the child lived in prior to the illegal abduction — has the right to determine custody. Countries abiding by the treaty are expected to facilitate a prompt return to the country of habitual residence.
The United States and Brazil both have signed and ratified the Hague Convention and became partner countries under the treaty in 2003. This means that both countries have agreed to follow the treaty’s provisions should an American or Brazilian child be abducted and removed to either country.
Parents who have had their child abducted can file a petition with the U.S. State Department under the Hague Convention, seeking the treaty’s protections in the return of their child. For a parent to exercise his or her rights under the treaty, the following conditions must be met:
- The U.S. must be contracting partners with the country the where the child was taken
- The abduction must have happened after the treaty between the two countries came into force (for Brazil, this would be December 1, 2003)
- The petition must occur within one year of the abduction
- The parent must have had legal custody over the child at the time of the abduction
- The child must be under 16-years-old
However, there are important exceptions provided under the Hague Convention that permit a country to retain a child that has been abducted. These include:
- When the child has been “settled” in the new country
- When the parent claiming abduction did not have custody rights at the time the child was removed
- When the parent consented or acquiesced to the removal
- When there is a grave risk that the child’s return would result in physical or psychological harm or place the child in an intolerable situation
In David Goldman’s case, more than one Brazilian court found that an exception under the treaty applied and denied Sean’s return. One court found that the child had been settled in Brazil; another found that the child’s return would result in psychological harm.
Brazil has a pattern of noncompliance with the Hague Convention. In a 2009 State Department report, it was noted that Brazil has a “troubling trend of treating Convention cases as custody decisions and often denying Convention applications upon finding that the children have become ‘adapted to Brazilian culture’.” The report also noted Brazil’s preference to award custody to mothers over fathers and to Brazilian citizens over non-citizens.
Currently, the State Department is working on 20 abduction cases in Brazil. Six of these abductions were reported prior to 2007, with three of them dating back to 2004.
The Role of U.S. Political Pressure
A unique, and perhaps pivotal, factor in David Goldman’s quest to bring his son back to the U.S. is the role played by prominent U.S. political figures. Unfortunately, most parents of abducted children do not receive the level of political intervention that David Goldman received.
Goldman received strong support from both his state legislators and high-ranking U.S. government officials. In July, Rep. Chris Smith introduced the International Child Abduction Prevention Act of 2009, an Act intended to ensure compliance with the Hague Convention. Rep. Smith also joined Goldman on his last trip to Brazil to recover his son.
Secretary of State Hillary Rodham Clinton met with her Brazilian counterpart, Foreign Minister Celso Amorim, in March 2009. In the same month, President Barack Obama discussed Sean’s case with Brazilian President Luiz Inacio Lula da Silva. Moreover, during the week before the final ruling that finally brought Sean home, the U.S. Senate voted to put a trade deal worth nearly $3 billion per year with Brazil on hold. It is likely that these political maneuvers, as well as the increasing international spotlight, helped sway the Brazilian court system to adhere to its treaty obligations under the Hague Convention.
Conclusion
There is nothing more terrifying for a parent than to have a child abducted — and no greater betrayal than when this abduction is committed by the child’s other parent. International abductions create added stress and limitations for parents seeking the return of their children, including the financial burden of traveling to the other country and retaining experienced, English-speaking
counsel to challenge the abduction.
While the Hague Convention provides protection to parents seeking the return of their abducted children, effectiveness under the treaty is wholly dependent on the particular country’s willingness to enforce it.