Beware of child abduction to Brazil

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Brazil and the United States are both signatories to the Hague Convention on the Civil Aspects of Child Abduction, that was set up to facilitate the prompt return of abducted children back to their country of habitual residence.

However, Brazil's compliance with its Hague obligations is open for question, as Richard Diamond in the New Jersey Divorce Law blog points out in connection with the return of Sean Goldman, a boy who was abducted over four years ago from New Jersey by his now-deceased Brazilian mother.  In this case, the father David Goldman filed an application under the Hague Convention in November, 2004 after his wife phoned him to say that she was not returning from Brazil. By the time the Hague Convention case was heard by the court, Sean had been in Brazil for more than a year. 

The Hague Convention does contain exceptions where a child may not be returned e.g. where to do so would present a grave risk or the child is of an age to make their own mind up.  In the case of Sean Goldman, the Brazilian court used an exception in Article 12 of the Hague Convention and did not order Sean's return based on the fact that he was now settled in his new environment, a decision upheld on appeal.   The problem with this legal argument is by delaying the hearing of Hague convention cases, Brazil creates a self-fulfilling situation i.e. it will be impossible for anyone to have their child returned, and parental abduction is rewarded.  An unfair and unjust result and not one within the spirit or intent of the Hague Convention. As an example, courts in the United States are expected to hear a Hague Convention case on an emergent basis and hold a hearing within six weeks.

Jeremy Morley, on his International Family Law blog also questions Brazil's compliance with the Hague Convention in the case of Francois Larivee, who for four years has been battling for the return of his son to Canada.  In fact the U.S. State Department in a 2008 report, labels Brazil as "non-compliant" with its obligations under the Hague Convention.   The report notes that Brazilian courts have treated Convention cases as custody decisions rather than wrongful removal or abduction cases and have refused the return of children to the United States, citing the "best interests of the child." The report also notes that Brazilian courts show bias towards mothers and Brazilian citizens.

So, if you are married to a Brazilian or have children with someone who has ties to Brazil then beware ! You may not be able to obtain the return of your children to the United States if they are taken there.

Comments

[carlos]

Hoping all the attention that David and Sean Goldman's case garners leads to the eventual logical question; what about Mexico? Mexico is less compliant w/ their obligations under the Hague Convention than Brazil and Brazil only has around 10% of the cases that the US has w/ Mexico making it renowned haven for would be abductors of US children