International Child Abductions and Children’s Best Interests

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14 Responses

  1. A.W. says:

    Well, the problem is that “best interests of the child” is always determined on the micro level, without any desire to look at the policy consequences. So like here, the kidnapping parent is rewarded for the kidnapping, because the kid is used to the napper and thus it becomes in their best interest to be with them. That may be true, micro, but is terrible, macro, because it encourages kidnapping.

    Also, it fails one of the most basic functions of the law, which is to be the alternative to violence. the next father in that situation will remember what happened to this man and might conclude that the best solution is, say, to shoot the ex and run with his kid back to america. That would be a travesty if it came to that.

  2. SHN says:

    It’s a difficult question, to be sure. In this case, the abducting parent was re-settled into what appears to be a “normal” family life in Brazil. But how often does this really happen?

    In one Hague Convention case that I handled, the non-custodial father abducted his 3-year-old daughter from Mexico. They lived on the run in the US for almost 3 years before we finally found them and had the little girl returned to her mother in Mexico. Without going into detail, the living conditions she was in were not what I would consider “in the best interest” of a young girl.

    And back to Sean’s case, is it in his best interest to be completely separated from his biological father, who is just another victim in this tragic story? It seems to me that it’s antithetical to a child’s best interest to leave him or her with an abducting parent who is willing to use their own child as a pawn to inflict pain on the “left behind” parent.

  3. Luke says:

    An intriguing post. What bothers me most is that the harm justifying keeping Sean in Brazil (i.e. depriving him of important family relationships, removing him from a world he’s known for 4 years, etc) is nearly exactly what was inflicted on him when he was taken to Brazil and away from a relationship with his father. How could we rely on those facts for ‘best interests’ without implicitly condoning the underlying action. I think it’s only possible if we give the status quo more deference than it deserves. My thoughts on this case in more detail here.

  4. A.J. Sutter says:

    I’m quite ignorant about this area of law, so I’m wondering how often “best interests of the child” reasoning leads to a disturbance of the status quo (sc. as at the time of the lawsuit). Does anyone know in what proportion of cases the parent seeking to remove the child from his or her current situation actually wins, in the US or in other fora? That would help to calibrate whether the result of the Brazilian court’s ruling is really so unusual as a practical matter, as distinct from the legal or policy puzzle it creates.

  5. Carlos says:

    Just curious what the censorship and moderation policy is for this site… I posted a comment which disagreed with the author, though without being harse, criticizing or vulgar and it seems it has been deemed unsuitable for publication..

  6. ParatrooperJJ says:

    Send in a team to get the child.

  7. ParatrooperJJ says:

    Send in a team to get the child.

  8. jimbino says:

    The laws involving “best interests” of a child are 100% based on fiction. When has a court taken a child out from religious indoctrination, for example, or out of a lousy public school?

    In any case, Brazil is such a better place to rear a child that rearing a kid in Amerika when there is an alternative should be considered child abuse.

  9. A.W. says:

    Jim

    Um, first, the courts do consider what kind of education you are going to get. its not the biggest thing, but its in there.

    As for “religious indoctrination,” well, there is that whole pesky first amendment, you know?

  10. jimbino says:

    A.W.

    Courts only intervene in cases of divorce or physical or “sexual abuse.” Otherwise, kids are treated as the property of their parents. There is no attention paid to the “best interests of the child.”

    As far as the “pesky first amendment” is concerned, it seems that it protects children from religion, circumcision, baptism, etc. forced on them by their parents under the aegis of the State. All children are born atheists and then the government spends billions to encourage the parents and schools to ruin their minds.

  11. A.W. says:

    Jim

    > Courts only intervene in cases of divorce or physical or “sexual abuse.”

    Technically there are a few more cases than just divorce can result in custody battles, but you are basically right.

    Anyway, divorce is the subject of this post. Yes, normally we don’t send big brother into every home to determine how good parents they are. In a divorce situation, they have to figure out where the kids go because they have competing claims to deal with, so the courts are forced to intervene and judge both parents even if neither parent is a “bad” parent. I think nothing would be more horrifying than if the state took kids away at the drop of a dime.

    Otherwise, courts largely stay out of the house unless we see a fairly extreme situation. At least that is my understanding of things, and let’s hope that is the case.

    And, um, why is “sexual abuse” in quote marks.

    > As far as the “pesky first amendment” is concerned, it seems that it protects children from religion, circumcision, baptism, etc. forced on them by their parents under the aegis of the State.

    Yes, that is exactly how the framers understood it. parents had no right to baptize their kids. *rolls eyes*

    By the way, if your sarcasm detector is broken, I have just been making fun of you.

    > All children are born atheists

    Well, I don’t know if a baby believes in God (that’s a theological question I won’t get into with you), but I can tell you a few things about a baby’s beliefs:

    1) They think gravity doesn’t pull downward

    2) They think hot things will not hurt and burn the skin, even as the hot thing is burning their skin,

    3) They think stomping on daddy’s testicles is funny (okay, I admit it is funny when it is not you),

    4) They think everything is edible,

    5) They think there is no need to use a toilet,

    6) They think breastfeeding will never end,

    7) They think Barney the purple dinosaur is real, and

    8) They think no one and nothing else in the universe is more important than themselves and their needs.

    Now all that ignorance can be blissful because a baby has adults who know the truth on those things who can stop them from hurting themselves or others very badly (and there is a sharp limit to how much a newborn baby is even capable of hurting himself or others). But then before the baby grows up we need to make sure the child understands those realities (to the extent that reality doesn’t educate them for us). In that sense, we can say that teaching about faith is part of the process of turning a selfish and foolish child into a decent adult.

    Oh, but I know where this is going. Its tediously obvious. You are here to gratuitously share the your unique belief that all faith is categorically bad. I wonder if you even know why that is self-evidently foolish?

    > the government spends billions to encourage the parents and schools to ruin their minds.

    By “encouraging” you mean the government largely steps back and lets the parents take their kids to church and evilly baptize them. And schools? Yeesh, if anything Christianity is getting discriminated against these days. Its not Christmas anymore, its “winter holiday” or solstice. Its not St. Patrick’s day. Its shamrock day. I mean when I was a kid I read Dr. King’s letter from a Birmingham jail and they literally took the God completely out of it. I left thinking Dr. King wrote a foolish letter, and only later when I read it unedited did his argument even make basic sense (love it or hate it, his argument in the letter depends on faith).

    Seriously, what planet are you living on?

    I’m not saying faith should be shoved down anyone’s throat. But you can say that kids are going to have a break in winter because the majority of them are Christians, who celebrate Christmas, so we call it Christmas break. Likewise, you can say that traditionally Irish people celebrate the life of Patrick, who was considered a saint, and so we call him St. Patrick. I don’t personally believe he was a saint, but I would, out of respect, call him one. Just as I don’t believe in nobility (as in title), but if I met Sean Connery, I would probably call him Sir Sean. And whether you are a Christian or not, you cannot accurately represent the philosophy of Dr. King without mentioning his faith. It is the absolute keystone to it. So if anything, Christianity is become the faith that dare not speak its name in our schools.

  12. Great Lakesgirl says:

    You need to do a little more studying in your law

    classes. The only reason he has not seen his dad

    in 4.5 years is because they would not let him.

    For Gods Sake this is his son and it was not his

    choice to be separated. He was kidnapped by his own selfish mother who thought of no one else but herself. She even said David was the greatest father. I will not believe in Justice in Brazil or

    the Hague Treaty if Sean is not returned to his Dad, This is only one case, their are 70 other kids who are missing the other parent. Sean cried

    for his Dad when they took him to Brazil. Who cared about the damage then? Sure not Mommy.

    What is right is right. Bring Sean Home USA

  13. ruth says:

    the child is not a parcel, in the difficult circumstances, perhaps the father oculd move to brazil to be near the son and build a bond.

  14. anon says:

    It’s important to note that a court hearing a properly presented Hague Petition is not making a custody decision (at least not a permanent one).

    The decision is about country of habitual residence. In other words, which country’s courts are the appropriate venue to hear the custody case.

    Once a decision to return a child to a home country is made the abductor, or in this case the abductor’s new spouse, have the option of seeking custody through the courts of the home country. Assuming he or she has standing under the laws of the home country. The treaty was specifically designed to prevent the Hague Court from reaching a decision on the merits, regarding best interests.

    In other words, if it really is in the child’s best interests to be with the stepfather the family court of New Jersey could reach that exact conclusion, but the stepfather must petition and present his evidence in the U.S.