David Goldman, a U.S. citizen, has spent the last five years battling for custody of his son Sean.  In 2004, Bruna Bianchi Goldman, David’s then- wife, abducted their four year old son.  Since then, David has been fighting to bring Sean home from Brazil, where he lives with his stepfather and maternal grandparents. 

David Goldman and his lawyers argue that under The Hague Convention on the Civil Aspects of Child Abduction (The Hague Treaty) Sean should be returned immediately to the United States.  The U.S. State Department, Secretary of State Clinton, and President Obama, have all tried to negotiate Sean’s return.  However, because of sovereignty issues, there has not yet been any success on this case.

The Hague Convention on the Civil Aspects of Child Abduction

On December 1, 1983, the Hague Convention became the primary civil means for negotiating the return of internationally abducted children. The Convention is only applicable to the 69 member states, and each state is responsible for enforcing the treaty within its borders. 

The purpose of the Convention is not to determine who receives custody of the child, nor to bring the abductor to justice.  Instead, as laid out in Article one, the objectives are:  “a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.”¹

In 2008, 1,615 children were abducted from the U.S. (776 were taken to Convention partners).²  According to the Treaty, wrongful removal occurs when the child is taken “in breach of rights of custody attributed to a person…under the law of the State in which the child was habitually resident immediately before the removal; and at the time of removal or retention those rights were actually exercised.”³    

David Goldman invoked this international treaty in 2004, with the hope that it would only be a matter of weeks before he and Sean were reunited.  In 2008, 361 wrongfully removed or retained children were returned to the U.S., and 248 (69 percent) were recovered by Convention partners.⁴ However, David’s case has been stalled for five years, and Sean has not been returned.   

Sean’s Abduction

On June 16, 2004, Bruna and Sean left their home in New Jersey for a two week vacation in Rio de Janeiro, Brazil.  Upon their arrival, Bruna called David and informed him that they were not returning and that she was divorcing him.⁵  Bruna subsequently received a divorce and full custody of Sean from a Brazilian court.  However, Article 16 of the Hague Treaty states: “The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be ground for refusing to return a child under this Convention.”⁶  

In the eyes of U.S. Courts, Bruna and David were still married.  Regardless, in 2007, Bruna married João Paulo Lins e Silva, a prominent Brazilian lawyer. 

After his son was abducted, David Goldman set up bringseanhome.org.  The website provides background on the case and regular updates on the progress of Sean’s return. 

Enforcing the Hague Treaty in Brazil

Even though the Convention was entered into force in Brazil in 2003, the country’s legal system is notorious for disregarding the Treaty.  In the Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, the U.S. State Department lists Brazil as one of seven countries demonstrating qualities of non compliance.  According to the report, Brazil’s Judicial, and Central Authority Performance received failing grades.  Law Enforcement is the only one of the three criteria where Brazil passed.⁷   

Instead of turning abduction cases over to the country of habitual residence, as the Treaty requires, Brazilian courts often make custody rulings themselves.  It is not uncommon for Brazilian citizens, and especially mothers like Bruna Bianchi, to receive preferential treatment in Brazilian courts.⁸  Additionally, because his mother is a Brazilian citizen, Sean is considered a Brazilian national, even though he was born in the US.

The Case Becomes More Complicated

On August 22, 2008, Bruna Bianchi passed away while giving birth to Lins e Silva’s daughter.⁹ When David Goldman learned this news he believed that he would soon be reunited with his son.  Instead, Goldman says that: “‘[Lins e Silva, who had been granted provisional guardianship] doesn’t file [for] custody, but files to remove my name from a Brazilian birth certificate that had been issued to my son, who was born in Red Bank, New Jersey.’”¹⁰  

(Interview of David from 2008: http://www.msnbc.msn.com/id/26867370/ discusses complications and new husband)

The Brazilian authorities were supposed to return Sean to the U.S. where custody hearings would take place.  Instead, they ruled according to what they thought Sean’s best interests were, and kept the boy in Brazil.  While the Treaty considers the mental and physical well-being of the child to be incredibly important, courts in the country that harbors the abducted child are not allowed to make such decisions.

A Glimmer of Hope is Snatched Away

Nearly five years after he began his international battle to regain custody of his son, David Goldman received the first good news.  On June 1, 2009, a Federal Court in Brazil ruled that David should regain custody of Sean.¹¹  However, the very next day, June 2, Brazilian Supreme Court Justice Marco Aurelio suspended that decision.¹² Justice Aurelio’s order was in response to a petition from a small political party.

The Brazilian Progressive Party requested that Judge Aurelio suspend the order and reconsider the implications of returning Sean to the U.S.  They claimed that Sean had grown attached to his Brazilian family, and that it would be harmful to remove him.  This argument does have some merit.   Article 12 of the Treaty states that: “The Judicial or administrative authority …shall also order the return of the child, unless it is demonstrated that the child is settled in its new environment.”¹³ 

That is why, according to the Convention and legal experts, the chances of recovering an abducted child are better if the case proceeds expeditiously.  The longer a case takes, the stronger the argument is that removing the child would be detrimental.     

Court Finally Recognizes Preeminence of Hague Treaty

After Justice Aurelio’s ruling, the rest of the Court had to evaluate the decision.  In a unanimous vote, on June 10th, 2009, Brazil’s Supreme Federal Court ruled that the Court did not have the right to go above the Hague Convention.¹⁴ They granted David custody of his son for six days a week, in Brazil. 

While this decision still does not follow the letter of the Treaty, it might serve as a transition step toward Sean’s return.  Currently, David Goldman is excited about the prospect of being reunited with his son, but will not be satisfied until he is allowed to return to the U.S. with Sean. 

The Brazilian Family Speaks Out

Throughout this entire ordeal, Bruna’s family and second husband have remained quiet. The family broke their silence on June 23, 2009, when they appeared on American TV to tell their side of the story.

Sean’s stepfather, João Paulo Lins e Silva, who treats the boy like his own son, argued that “‘Sean has spent sixty percent of his life in Brazil.  This is a place he feels safe, protected, loved.’”¹⁵  Lins e Silva wants Sean to stay in Brazil. 

Bruna’s mother also spoke out about her daughter’s marriage to David.  She said that Bruna was unhappy in her marriage and that there was no love.¹⁶

(Video of Interview: http://www.cbsnews.com/blogs/2009/06/22/crimesider/entry5104145.shtml )

David and his lawyers fired back.  Goldman said: “‘In depositions in New Jersey a year and a half after my wife, now deceased, took Sean and held him illegally in Brazil, [Bruna’s family said] there was nothing wrong with the marriage—under oath in depositions.’”¹⁷

Can a Child Determine His Own Fate?

Perhaps the most controversial statements that have come out recently are in a video where Sean Goldman allegedly says he wants to stay in Brazil with his family.  Article 13 of the Convention does state that: “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”¹⁸ But, is a nine-year-old mature enough to make these decisions on his own?

David claims that his son has been brainwashed.  Goldman’s lawyer Patricia Apy also had this to say: “‘This child is not to be even exposed to the media.  This family has walked right through those orders, subjecting this child to being asked a question that the court has said he should not even be asked—let alone in front of a camera.’”¹⁹

David Goldman Remains at the Mercy of Brazilian Courts

The problem with international treaties, like the Hague Convention, is that there is no governing body to enforce them.  It falls to every country to decide if they will, or will not, put the international law before their domestic policies.  In this case, Brazil has chosen to ignore the Hague Treaty.

Sean’s Brazilian family, and the Court that ruled in their favor, believe that it is more important to determine what Sean’s best interests are, and then make rulings based on that.  Under the Treaty, this is not the correct course of action, but it is hard to say that the boy’s health and well being should not be the only consideration.  The problem comes from determining who gets to make those decisions

For the time being, both David Goldman and Bruna’s family will keep fighting for what they think is best for Sean.  It is left to the Brazilian authorities to decide the correct course of action. 

Pictures:
http://www.flickr.com/photos/35632151@N02/3342054644/
http://www.flickr.com/photos/liudvikas/2978999383/
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