understanding u.s./brazil custody battles
Posted on December 27, 2015
Understanding U.S./Brazil custody battles
Q. Last week you wrote about a Houston doctor, Chris Brann, who couldn’t get his son back from Brazil.
What’s the difference between his case and the one
where David Goldman got his son back from Brazil?
A. Chris’ ex-wife filed her case in a Brazilian family court. She got primary custody of their son, Nico. Chris’ lawyer fought the case in that local court. Years later Chris’ new lawyer filed a Hague Kidnapping convention return case in the Brazilian Federal Court. If, like Chris, you wait more than a year, that Convention doesn’t require a return of the child to his or her habitual residence. Now, in this new case, my sense is Chris may get more parenting time in Brazil – perhaps without having an armed supervisor.
David’s wife, Bruna, took their child, Sean, then 4, to Brazil. She also filed her case in the family court and got sole custody of Sean. But David’s lawyer was experienced in these kinds of cases and immediately filed a request in the Brazilian Federal Court seeking a return under the Kidnapping Convention. However, until recently, the state courts there were not obligated to follow decisions of the Supreme Federal Court of Brazil.
There are other differences. While the state case was
in progress, Bruna divorced David. She married Joao
Paulo Lins e Silva, a lawyer from a powerful Brazilian
Shortly after, Bruna died from complications during the birth of Joao’s child, a daughter. If this happened in the United States there would be a presumption that Sean should be in David’s custody. But the Brazilian judge found that Sean had become attached to the paternal step-grandmother, Joao’s mother. So it was in Sean’s best interest that he stay where he was. David claims Joao and his family used their power to get the family court judges to find against David.
David’s case was championed in the United States by his local newspaper and local Congressman. David’s story got aired on ABC and NBC’s “Today Show”. Secretary of State Hillary Clinton spoke with her counterpart in Brazil.
Finally, the Supreme Court of Brazil ordered Sean returned to David. And, in the meantime the law had been changed to require such decisions to be binding on the state courts.
There are lots of moving parts to each case. So if
you have any concern that your child, when taken to
another country, might not be returned, condition your
approval on two things. First, sign an agreement of
return that is approved by a United States court. Then
have a mirror-image order entered in the court where the
child is going.
Of course you trust the other parent. Trust isn’t the issue. If the other parent is coming back, what’s the problem?
Stuff happens. So it is better to be safe than sorry.