The Lins e Silva and Bianchi families’ lawyers announced they will continue to dispute custody of nine-year-old Sean Goldman in Brazilian courts. The problem is that under the terms of the Hague Convention on the Civil Aspects of International Child Abduction, Brazilian courts should not decide custody in this case.
Sean, the son of Bruna Bianchi and an American, David Goldman, was born in the United States in 2000. He was brought to Brazil in June 2004 by his mother for a vacation. But soon after arriving, Bruna called David and told him she was staying in Brazil and the boy was staying with her.
In July, Bruna obtained provisional custody of the boy in a Brazilian court (2° Vara da Família). In September 2004, David Goldman filed a claim in a US court alleging his son had been abducted. In November 2004 Goldman went to court again and demanded the boy be returned to the US under the terms of the Hague Convention.
On three different occasions over the next two years a Brazilian family court (2° Vara da Família) ruled that as the boy was “adapted and happy” he could remain in Brazil with his mother. In July 2006, in a Brazilian court (2° Vara da Família), Bruna got a divorce from David and was awarded custody of Sean. In 2007 she remarried and, in 2008, died in childbirth.
Under the terms of the 1980 Hague Convention, the signatory nations, including Brazil and the United States, agreed that in cases in which a parent removes a child from one country, takes the child to another country and keeps the child there without consent of the other parent, the child should be immediately returned to the country he was taken from where the question of custody is to be decided. But, before custody there is the question of return.
The Hague Convention mentions the possibility of denying return when a child is “adapted and happy in an environment,” but this is a context not intended in the case of a recently abducted four-year-old like Sean in 2004 (even though he was quickly enrolled in school less than a month after arriving and was indeed living comfortably in an upper class home in Rio de Janeiro).
Sean’s Brazilian family and their lawyers, along with the advantage they had of easy transit in Rio family courts, clearly and consciously attempted to exploit loopholes in the Hague Convention over a long period of time – starting in 2004. And culminating in a last ditch attempt five years later to exploit another loophole in the convention and allow the boy, now nine years old, to express his opinion in court.
Letting children express their preferences in international child abduction cases is permitted in the Hague Convention. A Supreme Court associate justice actually accepted the idea of Sean testifying by slapping a stay order on a ruling by a regional federal court (TRF-2) that the boy be turned over to his father.
However, in dramatic fashion, the associate justice’s stay order was overturned by the emergency duty Supreme Court judge on Wednesday, December 23, and Sean was handed over to his father on December 24. They immediately left for the US.
Meanwhile, back in Rio, according to the lawyers of the Bianchi and Lins e Silva families, the Brazilian Supreme Court may yet decide to hear testimony from Sean Goldman and as a result they will reverse the TRF-2 ruling. That is a very remote possibility. What all the parties have to do now is sit down and hammer out visiting rights.