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Brazil sanctions parental kidnappings

Ask the Family Lawyer, by Jeanne M. HannahAn international parental kidnapping has been playing out for five years, with Brazil refusing to return Sean Goldman, abducted by his mother in 2004 to the U.S. Sean’s mother died nearly a year ago, and still Sean has not been returned to the U.S. despite the fact that even Brazil has a law that says custody automatically reverts to the surviving parent.

Sean and David GoldmanToday there are more than 60 children who have been abducted to Brazil, yet to be returned. Brazil has been tagged in a Department of State Office of Children’s Issues document, “April 2009 Report on Compliance with Hague Convention on the Civil Aspects of International Parental Abduction Convention,” as “demonstrating patterns of non-compliance.”

Other countries similarly identified are Bulgaria, Chile, Ecuador, Germany, Greece, Mexico (the worst), Poland and Venezuela. Honduras is non-compliant.

Brazil is in the No 2 spot of offender and has never, ever returned a child.

David Goldman, who continues his 5-year struggle to recover his son from Brazil, appeared with his lawyer Patricia Apy on the Today Show recently, with Meredith Viera. It was a powerful interview and a fitting exclusive rebuttal of the highly objectionable CBS Morning Show interview with Sean’s stepfather and maternal grandmother earlier this week. You’ll find this interview below.

Happily, Viera is willing to do her homework, unlike the coverage earlier this week on CBS’ The Morning Show. It was obvious that no one at CBS has a clue about the real issues here. Must be that sensationalizing a story means more to CBS than getting a hard news story right.

Brazilian Judge Rafael Pinto ruled on June 1, 2009 that Sean should be returned to the U.S. immediately.

A firm opinion was issued by Judge Rafael Pinto on June 1st in Rio de Janeiro stating that Sean has been the victim of parental alienation and that he should be placed in the custody of his father immediately to avoid more harm to Sean. The transition was to take place in the United States. Unfortunately, Joao Paulo Lins e Silva, Sean’s stepfather, appealed almost immediately, and a stay was granted.

Reunification ordered. On June 8th, Judge Pinto decided that since Sean wasn’t cleared to leave Brazil, it was appropriate to have the reunification of father and son take place in Brazil. Given the fact that Joao Paulo Lins e Silva has gone to great lengths to interfere with and/or simply prevent (in violation of a court order) positive parenting time between David and Sean, reunification in Brazil is less than ideal.

Summary of the June 1 ruling in favor of David Goldman

Judge Pinto’s June 1st opinion exposes the outrageous claims of Joao Paulo Lins e Silva. Lins e Silva filed papers with the Court after Sean’s mother died, without disclosing her death. There is speculation that he was merely hoping for a decision in favor of Sean’s mother and hoping he might succeed as far as her claim to custody.

Lins e Silva has advanced all kinds of legal theories for why he should prevail and be given the status of “socio-affective paternity” (this is something like our legal fiction of the “psychological parent”). Judge Rafael Pinto wasn’t kind in dismissing Lins e Silva’s claims, calling some of them ludicrous.

Res Judicata

Lins e Silva claimed that Sean’s mother had prevailed in the court and that the decision was res judicata (for non-lawyers: roughly translated that means already decided and not to be disturbed on appeal or relitigated). Essentially, Judge Pinto said that Bruna (Sean’s mother) had wrongfully detained Sean (kidnapped him). She wasn’t required to return him because the Hague Convention has a convenient defense: “The child is acclimated to his new environment.” But the doctrine of res judicata would not apply. For that doctrine to be effective, the court must have the same parties before it. Lins e Silva cannot step into the shows of Bruna. This legal theory was completely baseless.

Adapted to new environment

Judge Pinto said that, in fact, there was now a second abduction (the second by the step-father who had no legal right to keep Sean after Bruna died). Lins e Silva will not be allowed to use the defense that Sean is “adapted to Brazil,” and he cannot claim that Sean’s “habitual residence” was Brazil at the time of the second abduction (wrongful detention). Upon the death of his mother, the right to custody of Sean as a matter of law — Brazilian law, no less — passed to his biological surviving parent, David Goldman. Since Goldman filed his second petition for return under the Hague Convention only 35 days after Bruna’s death, the defense of adaptation to the new environment won’t be accepted. To quote Judge Pinto:

“In other words, and thinking in theory, it is not reasonable — indeed, it reaches the level of surrealism — to admit that a given person, devoid of familial power upon the minor — a third party — objects to the delivery of the child to the father or the mother, or both, under the basis that the child is integrated into their new environment.

“To admit this possibility means to open dangerous gaps capable of constituting real absurdities. And the absurd, as is well known, cannot find refuge in the Judiciary.”

Judge Pinto then gave an example . . . theater of the absurd . . . stranger kidnaps child, raises child as his own, gets married, now the child has a “father” and a “mother” . . . and later “siblings.” Can anyone reasonably believe that the law would reward the kidnapper by refusing to return the child to his lawful parents (who have tracked him down) on the claim that the child is “adapted to Brazil?”

“Of course not!” (His exclamation mark)

Explaining the difficulty in reunification, Judge Pinto discusses how Lins e Silva thwarted the court-ordered visitation by not being present when in October 2008 he was to allow David Goldman to see Sean, and how later Lins e Silva placed restrictions on the visitation that were not in the court’s order (confinement to the grounds, a supervisor within feet of David and Sean, for example).

Risk of harm to physical or mental health

Lins e Silva, himself a Hague Convention lawyer by the way, didn’t miss a trick. He used every defense available under the Hague Convention to avoid Sean’s return. So he claimed it would be emotionally damaging to Sean to be separated from him, from his sister Chiara and from the maternal grandparents. The judge gave short shrift to that argument as well.

Opposition of the child to return

There has been a lot of brouhaha lately about the video showing Sean saying that he wants to stay in Brazil. Sean, of course, is 9 years old, hardly old enough to make this kind of life choice for himself. But what is truly disgusting was discussed by the judge at length, again backing up the diagnosis of parental alienation practiced by Lins e Silva and the maternal grandparents.

“The Defendant (Lins e Silva) struggles hard on this point.

“It is sustained, incessantly, that the child should here remain because that would be his will.

“It lacks reasoning again.”

At length, the judge describes a session with three psychologists.

“When asked if he had any opinion about it [going to the U.S. to live with his father], Sean answered that for him ‘TANTO FAZ’ [loosely translated "It doesn't matter/whatever"]. Please note that Sean, while using these terms, leaned back in the chair, with his body relaxed, as a sign of tranquility. Vera [the female psychologist Sean has been seeing regularly hired by Lins e Silva] in turn, questioning in a surprised tone, repeats: “tanto faz!?” and the child supplements that he would rather stay here, but it is the ‘juiz que manda’ ["It's the judge who orders/the judge decides"] After that, Sean started to direct his sights at Vera along the conversation, as if searching for approval.”

Judge Pinto discusses that only when confronted with the disapproval of Dr. Vera Lemgruber did Sean repeat that he wants to stay in Brazil. Judge Pinto said that it would be convenient for the court to leave the decision to Sean, but that doing so would be irresponsible and cowardly.

Abandonment

Still fighting, Lins e Silva then claims that David abandoned Sean. Not so, said the judge. David has been fighting for Sean since the very beginning, more than five years ago.

Best Interests of the Child

As for Lins e Silva’s next argument . . . that Sean has constitutional rights and should not be returned because it is in his best interests to remain in Brazil (much garbage about how David Goldman cannot provide as good a life as the wealthy grandparents and the wealthy stepfather), Judge Silva begins to get really irritated:

“From the reason of the reasons described above, it can be seen, at once that for the Defendant, it matters little that, from that myopic interpretation of relevant constitutional principles, one could subtract from the minor, as inalienable right inherent to his personal statute, that is the right to live with the only father that is left to him.

“It is inconceivable, data maxima venia [loose translation: "an idea most corrupt"], that the principle of best interest of the child — often cited by the defense — be interpreted as intended there; in other words, that the best solution for Sean is to “condemn him,” after the irretrievable lost of his mother, to now also lose, forever, the father he still has, turning him into, almost, an orphan of mother and father!

“Moreover, contrary to what the defendant claims, denying the right of Sean to live and be raised by his father – his only living parent! – that would be a flagrant violation of the principle of human dignity.

“After all, the right to live with, and be raised by, one’s father is a fundamental element of human dignity!

“That is the reality.”

Discussing the parental alienation that is on-going at this very moment, Judge Pinto says:

“It concludes that the possible outliving of effective psychological damage to that child is far from being related to the child’s return to the United States, but is derived, in fact, from his stay here in Brazil, in case the boy remains under the possession and custody of the Defendant, and therefore, the other maternal relative.

“The parental alienation imposed on Sean, in short, tends to deteriorate further, to a stage in which the child does not even recognize, in the figure of Mr. David Goldman, that of his father, which is thoroughly detrimental to the child. Ergo, it is necessary to determine, immediately, the cessation of this process, something that will, only then, comply with the principle of the best interest of the child.”

Unfortunately, Lins e Silva has filed yet another appeal, thus the immediate return to the U.S. that was ordered on June 1st has been stayed. Unless the United States can put sufficient pressure on Brazil to give an expeditious ruling in the appellate court, this could drag on even more.

Because of the stay on appeal, Judge Pinto issued another order on June 8, 2009 that David Goldman may have custody of Sean from 9 a.m. on Monday until 8 p.m. on Saturday — but in Brazil.

Earlier articles I’ve written about Sean Goldman’s kidnapping may be found here and here and here and here.

  • http://goodmedicalcare.com/ Jeanne M Hannah

    Since the above article was written, yet another order issued in Brazil. This one said that Sean must remain with his stepfather pending resolution of the court case. CBS then aired a controversial interview on The Morning Show with Sean’s Brazilian stepfather and grandmother.

    Up on my constitutional high horse, I then fired off this email to CBS News executives:

    “CBS News needs to do its homework. The article “Boy must stay in Brazil for now, judge says” is as deficient in factual basis as was the soft, overly sympathetic interview of Joao Paulo Lins e Silva and Sean’s grandmother on The Morning Show last week. Moreover, it shows a myopic lack of attention to the rule of law.

    “The Sean Goldman case is — plain and simple — a case about kidnapping. This time it is not a parental kidnapping. Rather, it is a second kidnapping (wrongful detention) of Sean Goldman in Brazil by his stepfather Joao Paulo Lins e Silva. Still, Brazil shirks its duty to return Sean immediately, as Judge Pinto ordered on June 1st.

    “Brazil became a Hague Convention signatory on 12/01/2003. Since then over 65 children have been abducted by parents to Brazil and not one has been returned. Brazil’s own civil code says that when one parent dies, the other surviving parent (the legal, biological parent) by rule of law is automatically to have custody. Yet, when Sean’s mother died, he was not returned to his biological father who has been seeking his custody since 2004.

    “Sean’s stepfather is himself a Hague Convention lawyer, as is his father. Therefore, every possible defense under the Hague Convention has been raised in the latest proceedings in Brazil. This is a kind of “throw everything against the wall and see if anything will stick” approach. The Brazilian federal court judge, Rafael Pinto, shot all of these defenses (and others equally ludicrous) down. Only the extraordinary and competent advocacy of David Goldman’s lawyer, Patricia Apy of Red Bank, New Jersey could have led Judge Pinto to his insightful and competent decisions. Those decisions swept away any serious consideration of the “defenses” raised by Lins e Silva.

    “If CBS is too busy to read the 65 page June 1st decision by Judge Pinto holding that Sean should “immediately” be returned to the U.S. and to the custody of David Goldman and Judge Pinto’s subsequent June 8th decision describing the parental alienation to which Sean is subjected in Brazil, then I suggest that at the very least CBS might read my summaries. I trust that Patricia Apy will correct me if I have in any way failed to accurately state what Judge Pinto stated — both as findings of fact and conclusions of law. Contact her if you have any questions. For any news agency to offer up commentary and news stories that ignore the factual details of this case and the rule of law is irresponsible. For a major U.S. news agency such as CBS to do so is incomprehensible. The term “yellow journalism” comes to mind.

    “My summaries may be found here: http://tinyurl.com/mjz2c5

  • http://goodmedicalcare.com/ Jeanne M Hannah

    Since the above article was written, yet another order issued in Brazil. This one said that Sean must remain with his stepfather pending resolution of the court case. CBS then aired a controversial interview on The Morning Show with Sean's Brazilian stepfather and grandmother.

    Up on my constitutional high horse, I then fired off this email to CBS News executives:

    “CBS News needs to do its homework. The article “Boy must stay in Brazil for now, judge says” is as deficient in factual basis as was the soft, overly sympathetic interview of Joao Paulo Lins e Silva and Sean's grandmother on The Morning Show last week. Moreover, it shows a myopic lack of attention to the rule of law.

    “The Sean Goldman case is — plain and simple — a case about kidnapping. This time it is not a parental kidnapping. Rather, it is a second kidnapping (wrongful detention) of Sean Goldman in Brazil by his stepfather Joao Paulo Lins e Silva. Still, Brazil shirks its duty to return Sean immediately, as Judge Pinto ordered on June 1st.

    “Brazil became a Hague Convention signatory on 12/01/2003. Since then over 65 children have been abducted by parents to Brazil and not one has been returned. Brazil's own civil code says that when one parent dies, the other surviving parent (the legal, biological parent) by rule of law is automatically to have custody. Yet, when Sean's mother died, he was not returned to his biological father who has been seeking his custody since 2004.

    “Sean's stepfather is himself a Hague Convention lawyer, as is his father. Therefore, every possible defense under the Hague Convention has been raised in the latest proceedings in Brazil. This is a kind of “throw everything against the wall and see if anything will stick” approach. The Brazilian federal court judge, Rafael Pinto, shot all of these defenses (and others equally ludicrous) down. Only the extraordinary and competent advocacy of David Goldman's lawyer, Patricia Apy of Red Bank, New Jersey could have led Judge Pinto to his insightful and competent decisions. Those decisions swept away any serious consideration of the “defenses” raised by Lins e Silva.

    “If CBS is too busy to read the 65 page June 1st decision by Judge Pinto holding that Sean should “immediately” be returned to the U.S. and to the custody of David Goldman and Judge Pinto's subsequent June 8th decision describing the parental alienation to which Sean is subjected in Brazil, then I suggest that at the very least CBS might read my summaries. I trust that Patricia Apy will correct me if I have in any way failed to accurately state what Judge Pinto stated — both as findings of fact and conclusions of law. Contact her if you have any questions. For any news agency to offer up commentary and news stories that ignore the factual details of this case and the rule of law is irresponsible. For a major U.S. news agency such as CBS to do so is incomprehensible. The term “yellow journalism” comes to mind.

    “My summaries may be found here: http://tinyurl.com/mjz2c5

  • Anonymous

    Ms. Hannah,
    Thank you for your continued coverage and support of this horrible crime. I am trying to secure a meeting with (my) Congressman Tierney to have him support the two resolutions(HR 2702 and HR 3240) proposed by Congressman Smith. I would welcome any advise on how to get him to aid Mr. Goldman and co-sponsoring these resolutions. We as American citizens much act to bring this child and the others home!
    Again Thank You,
    Jacqueline Wilkins

    • http://traversecityfamilylaw.com jeannemhannah

      Ms. Wilkins,

      I understand that telephone calls or visits to members of Congress are more meaningful than letters or emails. I heard the other day that one Senator has about four people answering phones to take calls. Thank you for caring and making those contacts.

  • HerbWife

    Ms. Hannah,
    Thank you for your continued coverage and support of this horrible crime. I am trying to secure a meeting with (my) Congressman Tierney to have him support the two resolutions(HR 2702 and HR 3240) proposed by Congressman Smith. I would welcome any advise on how to get him to aid Mr. Goldman and co-sponsoring these resolutions. We as American citizens much act to bring this child and the others home!
    Again Thank You,
    Jacqueline Wilkins

  • http://traversecityfamilylaw.com jeannemhannah

    Ms. Wilkins,

    I understand that telephone calls or visits to members of Congress are more meaningful than letters or emails. I heard the other day that one Senator has about four people answering phones to take calls. Thank you for caring and making those contacts.

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