Custody Case Tests Abduction Laws and
U.S. – Brazil Ties
by KIRK SEMPLE
Tuesday, 24 February 2009
hen David Goldman’s wife, Bruna, and their 4-year-old son, Sean, boarded a plane at Newark Liberty International Airport in June 2004, Mr. Goldman was planning to join them a week later in Rio de Janeiro. Several days later, Ms. Goldman called and said she wanted a divorce. She was staying in Brazil, her native country, and so was the boy, she announced.
With that call, the Goldman family was sent into a high-profile international abduction and custody case that continues in American and Brazilian courts, which now has reached the highest levels of the Obama administration.
Mr. Goldman has only seen his son, now 8, once since the boy boarded that flight: a fleeting reunion in Rio this month. And he never saw his wife again. She died of complications from the birth of a daughter with her second husband, a lawyer who represented her against Mr. Goldman.
The case has become a sore point in the relationship between the United States and Brazil and may be on the agenda when Secretary of State Hillary Rodham Clinton and Celso Amorim, the Brazilian foreign minister, meet on Wednesday afternoon in advance of a scheduled meeting next month between President Obama and the Brazilian president, Luis Inácio Lula da Silva, former and present State Department officials said.
At the crux of the diplomatic tangle is Brazil’s handling of the case under an international treaty that addresses child abductions.
“If this were a dispute about recovering an artifact or a document in U.S. history, then it would be unfortunate but acceptable to allow years to go by while it’s adjudicated in local courts,” said Bernard W. Aronson, a former assistant secretary of state for inter-American affairs who has been advising Mr. Goldman. “But you’re dealing with a child who’s been deprived of contact with his father for four and a half years. Time is the enemy.”
The case has generated considerable media attention, and a number of Facebook and MySpace pages and a Web site, BringSeanHome.org, have been created to support Mr. Goldman. Two resolutions are pending in Congress demanding that Brazil repatriate Sean.
David Goldman met Bruna Ribeiro when he was modeling in Milan in 1997; she was there studying fashion design. They married in 1999 and moved to Tinton Falls, N.J., near the Jersey shore. Ms. Goldman gave birth to Sean in 2000.
Mr. Goldman, 42, who now works as a charter fishing boat captain, real estate agent and model, said he had no idea his wife had been unhappy until she called him on June 20, 2004, to demand a divorce and full custody of Sean. “I hadn’t a clue,” he said in phone interviews in the last week. In August 2004, a New Jersey Superior Court judge ruled that Ms. Goldman’s efforts to keep Sean in Brazil were “wrongful,” and he ordered the immediate repatriation of the boy.
In early September, after Ms. Goldman failed to comply with the judge’s order, Mr. Goldman’s lawyer notified the Office of Children’s Issues at the State Department, which helps Americans in cases of child abduction. The United States and Brazil are among 68 countries that have signed a treaty, known as the Hague Abduction Convention, which provides a mechanism for signatory countries to solve international child abduction cases.
Under the convention, the countries agree that a child who was removed from one signatory country by a parent and retained in another signatory country, in violation of the other parent’s custodial rights, shall be promptly returned. Once the child has been returned, the custody dispute can be resolved in the courts of that country. The treaty addresses where custody cases should be heard but does not try to determine who should have custody.
The State Department submitted the case to the Brazilian government, seeking cooperation with the return of Sean.
Mr. Goldman also sued in Brazil for the repatriation of Sean, citing the Hague Adoption Convention. In October 2005, a federal judge in Rio, Fábio Tenenblat, wrote in a decision that Sean’s “transfer to, or retention in, Brazil occurred illegally” under the laws of New Jersey.
But Judge Tenenblat cited a clause in the treaty that permits a judicial authority to allow the child to remain in the second country if “it is demonstrated that the child is now settled in its new environment” and if more than a year has passed since the child’s abduction and the start of legal action in the second country.
Sean attended one of Rio’s best schools, had many friends and was “a normal and happy child,” Judge Tenenblat said, and allowed Ms. Goldman to keep Sean.
Mr. Goldman’s lawyers pursued appeals up to the Brazilian Supreme Federal Court, arguing among other points that their challenge under the Hague Convention had started within a year of Sean’s abduction, said Patricia E. Apy, his lawyer in New Jersey.
As the legal battle unfolded, Ms. Goldman was granted a divorce in Brazil and married her lawyer, João Paulo Lins e Silva, a son of a well-connected family law attorney in Rio. In August 2008, with the case pending in Supreme Federal Court, she died during the birth of the couple’s daughter.
Days later, Mr. Goldman flew to Brazil to take custody of his son, but a Family Court judge granted guardianship and custody of Sean to Mr. Lins e Silva, to “fully guarantee” Sean’s “personal and emotional development.” The court also denied Mr. Goldman’s request to visit his son.
Mr. Goldman said he has traveled to Brazil eight times. “I’m always basically getting kicked in the teeth and getting sent home,” he said.
Mr. Lins e Silva said in an e-mail message that Brazilian law forbids him from commenting on the case and referred all inquiries to his lawyers, who did not reply to e-mailed questions this week. American officials have been increasingly frustrated with the Brazilian handling of the case and believe that Sean should have long ago been repatriated to the United States.
Several American officials in Washington and in Brazil — including congressmen, high-level State Department officials and the American ambassador in Brasilia — have met with Mr. Goldman in recent months to provide him with guidance and voice their support.
The State Department has cited Brazil for the past three years for noncompliance with the abduction treaty. The department has faulted the Brazilian courts for erroneously treating Hague cases as custody disputes, unnecessarily delaying cases and demonstrating an unfair bias toward Brazilian citizens, particularly mothers.
“Judges don’t understand what they’re being asked to do, which is enforce this international treaty,” said a State Department official who requested anonymity, because department rules prohibited her from speaking on the record.
There are currently about 50 unresolved Hague Convention cases involving children who were abducted from the United States and are being kept in Brazil, the State Department said.
On Feb. 9 and 10, Mr. Goldman was allowed to visit Sean for a total of about 12 hours.
The encounters took place in the common areas of a residential complex where Mr. Lins e Silva lives. American consular officers observed the meetings from a distance; Sean was accompanied each day by a psychologist and by a man in his 30s who described himself as Sean’s “friend,” Mr. Goldman said.
“After four years of separation, our bond was not broken, even under extremely strained circumstances,” Mr. Goldman said, adding that they played basketball, swam in a pool and looked at family photos from Sean’s years in New Jersey.
This month, the case was shifted back to the Brazilian federal court, where, Mr. Goldman’s advocates say, the case will be treated as a Hague Convention matter, not as a custody matter.
But Mr. Goldman said he was bracing for more disappointment. “I’ve been down this road — or up this hill, or up this mountain,” he said, sounding weary. “I still wake up every day in the house, down the hall from Sean’s room, and he’s not tucked in bed.”
Alexei Barrionuevo contributed reporting from Rio de Janeiro.