The ruling by Brazil’s chief justice in favor of an American man seeking to gain custody of his son has important resonances in an era of increasing international marriages, say several legal experts.
Chief Justice Gilmar Mendes late Tuesday ruled that nine-year-old Sean Goldman should be handed over to his New Jersey father, lifting a stay on a lower court’s order and raising the prospect that the two could be reunited within days.
The ruling comes in a five-year custody battle over Sean, who in 2004 was taken by his mother, Bruna Bianchi, to her native Brazil. Ms. Bianchi later divorced his father, David Goldman, and remarried. The boy remained in Brazil with his stepfather and other family after his mother's death last year, while his American father sued in both US and Brazil courts to get him back.
The case garnered international attention, and threatened to disturb Brazil-US relations.
“Although the Brazilian judicial system finally reached the right decision, its failure to act expeditiously contributed to this tragic story,” says Christopher Schmidt, a legal expert with the US law firm of Bryan Cave LLP.
Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, the Brazilian courts were supposed to render a decision within 6 weeks of filing the case in their country, he says. "Brazil breached its obligations in allowing this case to drag on for years."
Hague Convention meant to prevent such conflict
Assigning custody to the father confirms "the importance of the Hague Convention ... the over riding importance of the parent-child relationship… [and] recognizes uniform enforceability of custody and visitation and parental rights,” says Mark Lynn Levinson, a divorce attorney with Schuchman & Marshall in Century City, Calif., who has been practicing family law for about 15 years.
Lawyers on both sides say there is a slight chance for the Brazilian family to appeal.
One of the purposes of the 1980 Hague Convention was to prevent just this type of conflict, Mr. Levinson says. Parents residing in one nation who have any “misgivings” about the other parent's promises to return the children from visits or travel to another nation may end up refusing permission for the child to travel, he says.
“The parent who has relocated from, for example, the US, may refuse permission to travel and deprive the children of any relationship with the parent and family from another country. Any parent would certainly think twice about letting his or her child travel with a citizen of another country,” says Levinson.
Levinson and others also say that citizens of both countries ought to be asking to what extent politics have interfered with the law. Lawmakers in the US House of Representatives passed a resolution this year asking Brazil to return Sean. New Jersey Sen. Frank Lautenberg (D) last week delayed the renewal of a $2.75 billion trade deal that would lift tariffs on some Brazilian exports, citing the Goldman case.
A case of abduction?
Since Bianchi's death, her family and second husband fought to keep the boy in Brazil, saying he has settled in the country and does not want to go back the United States. Mr. Goldman, the father, called the case one of international child abduction.
Chief Justice Mendes was expected to decide the case on Monday, but delayed the ruling to Tuesday. Last Thursday, another Supreme Court judge had blocked a decision by a federal court ordering the return of the boy to US authorities within 48 hours.
The father, who has only seen Sean in brief visits to Brazil since 2004, and Brazil's attorney-general appealed that ruling, asking for Sean to be handed over immediately.
The lawyer for the Brazilian family told Reuters that Sean had a right for his voice to be heard in court.
• Material from the wire services was used in this report.
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