Reply by Patricia Apy, Esq.

Memoranda in Response to Letter authored by João Paulo Lins e Silva to “National Council of Children and Adolescent Rights” and released through Brazilian media.

Patricia E. Apy
Attorney for David Goldman
Paras, Apy & Reiss, P.C.
Red Bank, New Jersey

Recently I understand that correspondence was advanced in the Brazilian media, purporting to be authored by João Paulo Lins e Silva, addressing his version of events surrounding the Goldman matter.

The vast majority of the representations contain statements unsupported by the facts, and are admitted hearsay, and therefore, it is unnecessary to respond to such accusations, in large measure because they lack relevance to determinations properly made pursuant to the Hague Convention.

The Hague Convention on the Civil Aspects of Child Abduction is a limited inquiry: Has a child been wrongfully removed or retained away from their state of habitual residence and from a parent who was exercising custody or would have exercised custody, but for the removal or retention? If the answer is yes, the return of the child is mandatory.

However, it will undoubtedly be helpful for the evaluation of credibility, particularly to those legitimately attempting to understand this matter, to address several objective issues, all supported and documented by the evidence submitted by both of the parties in the courts of the United States, which contradict this account.

Mr. Lins e Silva’s attempts at characterizing this as a nationalistic issue is not only inaccurate, but diminishes the Brazilian judiciary and government who now appear to support the pending application for the return of this child to the United States. His comments can only be considered an act of desperation, designed to distract from the Treaty obligations.

First, Mr. Lins e Silva conveys in his correspondence a time line that for the first time contains admissions which actually support Mr. Lins e Silva’s role in this long and sordid history, and confirms the long held suspicion that Bruna Goldman planned and premeditated an abduction of the parties’ son, as was originally asserted by Mr. Goldman in his filing in August of 2004.

Original Brazilian Custody Filing

Mr. Lins e Silva describes the allegations conveyed to him by Bruna, and indicates that Bruna “decided” not to return to the US. Later in this letter, he is careful to say that she made that decision only after she arrived in Brazil.

However, in the representations that she made to the Brazilian family court she recounted that it was a planned separation and David Goldman permitted his son to go to Brazil with that understanding, the Court summarized the statements upon which they based their decision, as follows:

“Last June, after using all her persuasion power Petitioner was able to come to Rio de Janeiro in the company of her son…continuing with the understandings she had initiated in the United States in connection with their separation.”

Her story was only discovered when Mrs. Goldman attempted to use the Brazilian family Court documents within the New Jersey case and attached a translation of the Brazilian court findings to her United States pleadings, many months later. Clearly, Sean had only been in Brazil for a mere two weeks on July 9, 2004 when Mrs. Goldman alleged she had “continu[ed] the understandings she initiated”. Such language could have no other purpose but to misrepresent to the Judge in Brazil that her presence there was as a result of a jointly planned marital separation.

Mr. Lins e Silva now confirms the strategy that Bruna employed in her filings “during the authorized period of time given to Bruna by the American to stay in Brazil with her son…appeared in the Brazilian Court and asked for custody of Sean, which was quickly granted”. In that brief “authorized period”, the record reflects that Sean was immediately registered in the “Andrews Baby School, since June of 2004 as evidenced in the enclosed statement, and is fully adapted.” Mr. Lins e Silva argues that Mrs. Goldman only made the decision after having arrived in Brazil on the 19th of June of 2004, but the pleadings filed before the Brazilian court direct that he was “registered” in school immediately, without the knowledge or consent of the father. In an attempt to begin to build her case, she also subjected the child to one of the many professional psychologists she would employ throughout this matter, never with notice to or the participation of Mr. Goldman. These arguments, like most of those being advanced by Mr. Lins e Silva, were made, and rejected before the New Jersey courts.

While it is alleged that David Goldman knew about this filing, such could not be the case, as established by her own counsel, Peter A. McKay, Esquire. Mrs. Goldman’s attorney was forced to admit to the court for the record, and required to confirm in writing, that Mr. Goldman was only provided the documents supporting Bruna’s filing in the Brazilian family court, on December 22, 2004, nearly 6 months after they were filed. Because precisely the kind of duplicity contained in this published correspondence was anticipated, Mr. Goldman insisted that the record actually reflect the admission of her lawyer on her behalf to confirm it. (See attached correspondence Letter from Peter Mc Kay dated January 7, 2005; and please refer to the order of the New Jersey court confirming that the custody complaint had not been served until December 22, 2004.)

It was alleged before, and found by, the court that Mrs. Goldman had purposely not provided to Mr. Goldman these papers because it was obvious that the allegations to the Brazilian court which she had made, like the ones above, would have been immediately disputable.

Divorce proceedings and Involvement of Lins e Silva

The other legal allegations which have been made now permit us to characterize the relationship of Mr. Lins e Silva and this child, in a way deserving attention. A careful reading of this letter indicates that Mr. Goldman was provided notice of the divorce through a “judicial officer in Brasilia”. That is a polite way of saying that he was informed that the divorce had already been accomplished when he travelled to Brazil to participate in the proceedings on the Hague matter. Not only did Mr. Goldman receive no notice of Bruna’s filing of the Brazilian divorce, indeed her legal representatives in the United States, continued to discuss the eventual prosecution of a divorce complaint in the United States, and continued to promise to respond to Mr. Goldman’s counsel and confirm their ability to represent her interests in the United States. Mr. Goldman later learned that Mrs. Goldman had reportedly filed sometime in 2006.

But a careful reading of this letter indicates that Mr. Lins e Silva says that Sean Goldman was “under his care” since January of 2005. Later he admits that “in less than six months from meeting we were living together.” It is unclear from the history of multiple meetings that he provides in his letter, when he and Bruna met and under what circumstances. But clearly his admission establishes his involvement with Bruna from June of 2004 when the wrongful removal and retention to Brazil occurred. At the time that Bruna was still married, while this case was still pending in the New Jersey courts, and still pending before the Brazilian courts on the Hague Petition (which was entered in October 2005), the fact that Sean was not living exclusively with his mother and her parents, as she had stated in her own court documents, was never disclosed, until set forth in this letter.

The fact that Mrs. Goldman had moved in with her lover, and that this man was encouraged to be referred to as “Daddy” by Sean, and to diminish the role of Mr. Goldman to “the American” was strategically kept a secret from the judges hearing this matter in both Brazil and the United States, and demonstrates the lack of care and concern for the needs of the minor child.

Attached is my correspondence dated January 18, 2005 addressed to James Newman, Esquire, of the law firm Newman, Scarola and Associates, the local counsel representing the Ribieros, the maternal grandparents of Sean. It documents that Mr. Goldman, who tried on a virtually daily basis to talk to his son, had suddenly “been unable to locate him”, this coincides precisely with Mr. Lins e Silva’s admission that he had moved in with Bruna Goldman and taken control of Sean that date.

Had Mrs. Goldman and her family been as proud or as sure of their actions as they now opine, one wonders why they continued to lie to the courts in both countries. It is clear that no court, in either country would reasonably countenance moving a man into the home, with a small child while the court deliberates, and a year prior to even filing for divorce. Indeed, even the secret provisional custody order obtained quickly by Bruna, disclosed to Mr. Goldman in December of 2004 is silent about Mrs. Goldman’s intentions to do anything other than rely upon her parents.

Hague Petition

The allegation of International Parental Abduction, as Mr. Lins e Silva well knows, was filed immediately with the United States Department of State and transmitted to the Central Authority of Brazil on September 3, 2004, 46 days after Sean was abducted, and only after the return plane tickets for Sean and his mother had gone unused, and constant entreaties of Mr. Goldman to secure Bruna’s voluntary return were ignored. Attached to it was the order requiring Bruna to voluntarily return.

Had the facts, as alleged by Mr. Lins e Silva been as compelling as described, there would have been no difficulty obtaining permission to relocate with Sean to Brazil. Mrs. Goldman was unwilling to subject her proofs to cross examination, or to permit them to be subjected to scrutiny at the location of the evidence in New Jersey where the parties lived, where Sean went to school, and where these allegations would be immediately contradicted by witnesses living with this family.

The judicial filing of the Hague Petition was properly before the Brazilian Federal Court seeking the return of Sean, was made on November 17, 2004. Mr. Goldman did not go to a law office in Sao Paulo as described, (implying he neglected to visit Sean). Indeed, he pursued his remedies, as required under the Treaty (i.e. Hague Convention on Civil Aspects of International child abduction), through the assistance of the diplomatic offices of both of these countries, and counsel arranged in Brazil.

Mr. Lins e Silva knows that negotiations were conducted, and Mr. Goldman made proposal after proposal through counsel for the exercise of access in the United States and in Brazil, including offering to see Sean in third country if necessary, merely to be permitted to see him. During the last written proposals, attorneys for Mrs. Goldman communicated that Bruna refused to comply or to even have a conference to further discuss resolution.

Despite Mr. Lins e Silva describing David as having “repeatedly lost”, he is careful not to share either the timing or the legal issues with his readers. In October of 2005 the Federal Court in Brazil issued its finding that Sean, was actually habitually resident in the United States of America for the purposes of this Treaty; and further, that pursuant to the law of habitual residence, New Jersey, United States of America, Sean had indeed been wrongfully retained in Brazil. Mr. Lins e Silva knows that it is the determination of habitual residence, not the fact that Sean enjoys the benefits of dual citizenship that determine the responsibility to return Sean.

However, the Federal Court declined to return Sean, based erroneously upon that time that the Federal Court took to deliberate and render a decision. Because that position is unsupported in the Treaty or found in International jurisprudence, the matter was immediately appealed.

The matter remained pending before the highest appellate court when Bruna died. However Mr. Lins e Silva, and those representing Bruna, did not disclose her death to either David Goldman or to the Federal courts in Brazil, hoping to first obtain a favorable decision. His comment that “he [referring to David] was made to understand that the law rules in the interest of the minor and in this case that he would stay in Brazil with his mother” belies the fact that Mr. Lins e Silva and his father, who is an internationally regarded Brazilian expert in the Hague Convention, are both well aware that the precepts of this Convention have never supported the continued wrongful retention of Sean. In the application now pending before the Federal Court, the government of Brazil acknowledges and urges the return of Sean, and they continue to urge that because the wrongful removal and retention have continued this long, Sean’s habitual residence is Brazil.

The relationship that Mr. Lins de Silva cultivated with Sean was possible only because it was conducted in secret by preventing any meaningful contact between David Goldman and his son. Court documents confirm that Mr. Goldman was ordered to have access with his son by the Brazilian court and Mr. Lins de Silva ignored the order and left with the child, causing Mr. Goldman, once again to leave without even seeing Sean. It is clear, based upon the most recent court ordered visitation, that the fear which engendered the obstruction of parental access was well founded, in that Sean immediately responded to his father, with great physical and emotional affection and love, in the presence of witnesses and the psychologist hired to observe their interaction.

Mr. Lins de Silva is correct in describing that immediately after his wife’s death he decided to “take a legal initiative…”, in fact, he filed, again secretly, to have David Goldman’s name removed from the Brazilian Birth Certificate, as well the paternal grandparents names.

Mr. Goldman amended the Hague Petition to include Mr. Lins e Silva and to assert the continued wrongful retention of Sean, only when it became clear that Mr. Lins e Silva and the Ribiero family would not honor the orders of the United States Courts or his rights as the father of Sean and return Sean to his father’s custody.

Mr. Goldman was consistently advised to trust the international judicial process in the application of the Hague convention on the Civil Aspects of Child Abduction by the government and judiciary of Brazil. In reliance upon that advice by the Central Authorities of both countries, Mr. Goldman pursued neither criminal sanctions available in the United States, nor sought any media contact regarding this case while the matter remained pending before the Brazilian courts. Mr. Goldman has never hired a media consultant.

Once Bruna had died, and the secret and inappropriate litigation efforts exposed, Mr. Goldman reluctantly agreed to begin the arduous diplomatic process, and to permit his story to be told in public, when he discovered the death of Bruna and the holding of Sean by Mr. Lins e Silva.

No longer burdened by the misrepresentations of Bruna Goldman and her family, or the secret influence of Mr. Lins e Silva, it is hoped that the International Treaty law, upon which both countries rely for the welfare and protection of all of their citizens will no longer be misused.

Patricia E. Apy
Attorney for David Goldman
7 March 2009

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