Dallas Divorce Law Blog by Michelle O'Neil

You may have read  recently about David Goldman whose wife went to Brazil for vacation with their son and then refused to bring him back.  She later divorced him in Brazil and remarried a Brazillian lawyer.  Recently the wife died, leaving the son with the new stepfather who refuses to return him to the Father in the U.S.  David went to court in New Jersey and got orders requiring the return of his abducted son to the U.S., but they have been ignored.

In this situation, David relies upon the government of Brazil to honor its commitment to the Hague Convention treaty, which sets out the procedure for resolving international custody disputes.  Hague Convention was adopted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the nation-state of their habitual residence, as well as to secure protection for rights of access. Its purpose is to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home countries where the courts can resolve the custody issue on its merits.

The Hague Convention applies only among contracting states and is available only when a child is wrongfully removed from a signatory country and retained in another signatory country. The United States ratified the Hague Convention in 1988, and the Convention was implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000).

Brazil signed on to the Hague treaty on December 1, 2003, according to the Department of State’s website.  The process, according to the State Department is this:

Hague applications are submitted to the U.S. Central Authority for forwarding to the   Central Authority in Brazil.  The Brazilian Central Authority examines the application and determines whether they will accept it.  Once the application is accepted, the Central Authority with the aid of INTERPOL determines the location of the child.  Once the location of the child and taking parent is known, the Central Authority attempts to mediate an agreement between the parents.  If an agreement is not reached, the case is forwarded to the Attorney General’s Office (AGU), who files the case with a federal court.

The petition is assigned to a federal judge within 48 hours of its filing with the court.  The court notifies the taking parent and summons their attorney to contest the petition. The AGU, acting on behalf of the Brazilian Central Authority as well as the left behind parent, then has an opportunity to respond to the taking parent’s arguments.  After both parties have been heard, the Judge submits the case for examination to a representative of the Ministerio Publico. 

The Ministerio Publico presents a formal opinion to the Court in all cases involving minors.  In Hague abduction cases, the representative will submit a report recommending either the return of the child or that the child should remain in Brazil.  In Federal cases, the representative will be a Procurador da Republica (Public Prosecutor).  If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor).  The Judge has complete independence to rule on the case and does not have to follow the Ministerio Publico’s recommendation in his decision.  At this stage the Judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority.  The AGU continues to follow the case, acting on the left behind parent’s behalf throughout all legal procedures until there is a final decision. There is no time limit for a verdict to be issued in the case.

Once the other biological parent passed away, David should have automatically seen the return of his son.  That he didn’t is a tragedy.  If there is an consolation for David, it must be that at least Brazil has signed on to the Hague treaty, providing remedies for him.  There are many parents whose children have been abducted to countries that have not agreed to the Hague treaty, leaving the parents with very few remedies and very few allies, fighting for their children under the laws of a foreign country.  Examples of countries that do not subscribe to the Hague treaty include Cuba, Haiti, Iran, Saudi Arabia, Japan, Pakistan, Thailand, Pakistan, Yemen.  For a complete list, check out the State Department’s map of countries. 

My heart goes out to all parents dealing with issues of international child abduction.  It is a very hard situation.  All parents who regularly see their children should be grateful and remember the tribulations of these parents when dealing with their custody issues.  Maybe they seem more trivial in comparison?