International Child Abductions and Children’s Best Interests
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?