International Child Abductions and Children’s Best Interests
posted by Solangel Maldonado
Some of my family law students have been following the international custody case involving Brazil and the United States. According to David Goldman, a New Jersey resident, in June 2004, his wife took their four year-old son, Sean, to Brazil on vacation where he was supposed to join them a week later. However, a few days after arriving in Brazil, his wife informed him she was divorcing him and would remain in Brazil with their son. This case is not unique. Thousands of parents each year remove children from their country of residence and retain them in another country without the other parent’s consent, in breach of the other parent’s custodial rights. Lawmakers around the world have long known that international child abduction by a parent is a serious problem and have attempted to create a mechanism to ensure that children are returned to their country of residence. Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, ratified by 68 nations, the signatory countries agree to promptly return a child who has been wrongfully removed to or retained in another signatory country.
Unfortunately, the Hague’s procedural mechanisms do not always work for two reasons. First, courts do not always comply with the Hague and second, even when they do, abducting parents sometimes go into hiding with the child and cannot be found. The retaining country and its law enforcement officials often make little effort to find the child.
The Goldman case clearly illustrates the first reason. Mr. Goldman did what he was supposed to do to get his son back to the United States. He immediately filed a petition for Sean’s return in New Jersey Superior Court. Just two months after Sean’s abduction, the New Jersey Superior Court ordered that he be returned to New Jersey. When Ms. Goldman did not comply with the New Jersey court order, Mr. Goldman contacted the U.S. Department of State which contacted the Brazilian government. Mr. Goldman also filed a petition for Sean’s return in the Brazilian courts. Sixteen months after Sean’s abduction, the Brazilian court agreed with the New Jersey Superior Court and held that Sean had been wrongfully removed to or retained in Brazil. However, the court found that one of the Hague’s exceptions to return applied—that legal action was not commenced within one year of the abduction and the child is now settled in the new country. Mr. Goldman has appealed the Brazilian court’s decision, arguing in part, that he filed his Hague petition within three months of Sean’s abduction. In the interim, there are two conflicting decisions from two different countries and no mechanism for resolving them. The U.S. State Department has cited Brazil for its failure to comply with the Hague, but that does nothing for parents like Mr. Goldman who are still waiting for their children’s return. Further, even if the Brazilian appellate courts decide that Sean must be returned to New Jersey, after almost five years in Brazil, the potential harm to this child, if he is returned to New Jersey, may be significant.
While this case was slowly making its way through the Brazilian court system, Ms. Goldman divorced Mr. Goldman and married her attorney. When she died a few hours after giving birth to her second child this past August, Mr. Goldman went to Brazil to take custody of Sean, but a Brazilian family court awarded custody to Sean’s stepfather. Although Mr. Goldman is certainly not to blame for the loss of his child, the Brazilian family court’s decision to deny him custody might actually be in Sean’s best interests. Most U.S. states recognize that parents have a fundamental right to the care and custody of their children and will not award custody to a non-parent over a parent unless it would be detrimental to the child’s welfare. This might be one of those cases where a child will suffer serious psychological and emotional harm if the court awards custody to a parent over a non-parent. Sean did not see his father once in almost four and a half years, and a return to the U.S. where he has not been since he was 4 years old (he is now 8), far away from his 7 month-old sister, his stepfather, and maternal grandparents would likely be detrimental. Children are resilient and Sean will probably be able to bond with his father once again, but it would be foolish to ignore the potential harm to a child if he is removed from his home and the people (such as his stepfather and grandparents) who may have become his psychological parents.
U.S. officials, including the U.S. House of Representatives and Secretary of State Hillary Clinton, are pressuring Brazilian officials to return Sean to the U.S. immediately, as required by the Hague Convention. Unfortunately, just because the law requires a certain outcome does not mean that it will automatically be in this particular child’s best interests. This raises the question: at what point must children’s best interests be sacrificed to the international community’s interest in discouraging child abductions and its interest in ensuring that countries, such as Brazil, comply with international law expeditiously?
March 16, 2009 at 1:16 pm
Posted in: Family Law, International & Comparative Law
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Responses (14)
A.W. - March 16, 2009 at 2:44 pm
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.
SHN - March 16, 2009 at 3:38 pm
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.
Luke - March 16, 2009 at 6:36 pm
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.
A.J. Sutter - March 16, 2009 at 8:44 pm
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.
Carlos - March 16, 2009 at 8:59 pm
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..
ParatrooperJJ - March 17, 2009 at 7:37 am
Send in a team to get the child.
ParatrooperJJ - March 17, 2009 at 7:37 am
Send in a team to get the child.
jimbino - March 17, 2009 at 8:17 am
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.
A.W. - March 17, 2009 at 3:19 pm
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?
jimbino - March 18, 2009 at 7:37 am
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.
A.W. - March 18, 2009 at 9:30 am
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
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.
Great Lakesgirl - March 20, 2009 at 11:34 pm
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
ruth - June 9, 2009 at 11:56 am
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.
anon - December 28, 2009 at 9:08 am
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.
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