International Child Abduction and the Legitimacy of International Law

Alicia Dodge, Government Law Review Member 

I.  Background

      The vast advancements in technological capabilities have greatly changed traditional jurisdictional principles.  No longer is it sufficient for a state’s laws to only apply to persons and property solely within its territory, a concept known as the “territorial principle.”1  A state’s jurisdiction must now be able to extend extraterritorially in order to comport with the technological advancements of today.  States have realized this necessity, sparking the prevalence of international law documents aimed at resolving disputes between states.  However, international law also raises questions of internal legitimacy in regards to political, judicial, and societal differences between states.

II.  The Hague Convention on the Civil Aspects of International Child Abduction

   Increased divorce rates coupled with advancements in technology, which make travel much easier, spurred the need for an international treaty to regulate child abductions.2  The resulting document is known as The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter The Hague Abduction Convention), the purpose of which is to establish judicial guidelines for states to follow after a child has been wrongfully abducted.3  Time is of the essence in child abductions, as the abductors typically will attempt to drag out the process, lengthening the time that the child is separated from the parent.  The signatory countries are bound to follow the treaty, making the return much smoother and expedited.  In order to maintain the legitimacy of international law, the states must comply with their treaty obligations or risk damaging their reputation with other states.4  According to UN Charter Article 2(2), “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them . . . .”5  In order to state a claim under The Hague Abduction Convention, it must be demonstrated that

    [The] child was habitually [a] resident of the country from which the child was abducted; [the] petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and at the time of wrongful[] removal, [the] petitioning parent was exercising those rights.6 

The petitioner bears the burden of proof by a preponderance of the evidence, and then the responding party may attempt to prove an affirmative defense to oppose the child’s return.7  There are four such affirmative defenses, two of which must be proven by clear and convincing evidence, which are “that ‘there is a grave risk that the child’s return would expose the child to physical or psychological harm[,] . . .’” or that the return would violate fundamental human rights norms.8  The other two affirmative defenses require proof by a preponderance of the evidence, and they “are either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, or that the Appellant was not actually exercising custody rights at the time of removal.”9

III.  International Child Abduction of Sean Goldman

      The issue of international child abduction is currently relevant, as it is estimated that there are approximately fifty unresolved cases of children abducted from the United States and being held in Brazil, the most prominent case being that of nine-year-old Sean Goldman.10  The parties, David Goldman and Bruna Bianchi Carneiro Ribeiro, wed on December 17, 1999 and had a son, Sean Goldman, born on May 25, 2000 in New Jersey.11  However, on June 16, 2004, their lives changed when Ms. Goldman took Sean to Brazil to visit her parents on a planned two-week vacation.12  Upon their arrival, Ms. Goldman called Mr. Goldman to tell him the marriage was over, and that she and Sean would not be returning to the United States.13 

      The abduction spurred numerous legal battles, and in August of 2004, the New Jersey Superior Court ruled that Sean should be returned to his father immediately.14  The battle was far from over, though, because Ms. Goldman failed to comply with the order, thereby forcing Mr. Goldman’s attorney to contact the Office of Children’s Issues at the State Department, invoking The Hague Abduction Convention.15  Both the United States and Brazil are signatories to The Hague Abduction Convention, which mandates that a child wrongfully retained in a signatory country shall be immediately returned.16  Upon return, the custody determination can be decided in the country of habitual residence.17  Further, Mr. Goldman brought an action in Brazil arguing violations of The Hague Abduction Convention, and in October of 2005, the federal judge agreed that it was an abduction and was, thus, illegal.18  However, the judge argued that according to Article 12 of The Hague Abduction Convention, he had the authority to order the child to remain in Brazil “if ‘it is demonstrated that the child is now settled in its new environment’ and if more than a year has passed since the abduction and the start of legal action in the second country.”19  Some argue that Sean has adapted to life in Brazil, and it would be in his best interests not to interrupt his new family life.20  Others argue that Sean has only adapted to life in Brazil because he had no other choice, as he was forcefully kidnapped from his home in New Jersey and brought to Brazil five years ago.  This decision to keep Sean in Brazil was met with extreme opposition as it exuded bias towards Brazilian citizens and sexism by favoring a mother’s rights with the child, instead of taking into account what would be in the child’s best interests.  Mr. Goldman appealed the judge’s decision that Sean remain in Brazil, arguing that the challenge began within a year of the abduction.21  Ms. Goldman then divorced Mr. Goldman, and married Joano Paulo Lins e Silva, her lawyer.22  Pending appeal, Ms. Goldman died while giving birth, in August of 2008.23

      Mr. Goldman immediately flew to Brazil, believing that he would be reunited with Sean as his only remaining biological parent, but when he arrived, he was denied visitation.24  Further, e Silva was granted custody of Sean.25  Mr. Goldman’s last hope to regain custody of his son was left in the hands of the Brazilian Supreme Federal Court, which on December 16, 2009 ordered Sean to be returned to his father by December 18, 2009.26  Unfortunately, on December 17, 2009, a stay was issued to halt the decision until February 2010 when session resumes.27  On December 18, 2009, Mr. Goldman filed an appeal to negate the stay order, and on December 22, 2009, the stay was lifted, finally granting him custody of his son.28  The two were reunited on December 24, 2009 with hopes that both sides of Sean’s family can one day be civil.29  However, there is still concern that Sean’s family in Brazil may appeal the decision.30

IV.  Will Justice Prevail?

      Sean’s abduction is the exact type of case that The Hague Abduction Convention was designed to provide clear-cut guidelines for both the United States and Brazil to follow, which should have resulted in Sean’s return to the United States shortly after his abduction.  Unfortunately, his case became much more than a custody battle or even an international child abduction case, and turned into a “good country versus bad country” media frenzy.  American news portrayed this situation as blatant child abduction, while Brazilian news outlets proclaimed that Sean wanted to stay, and that America should not intervene in its actions.31 

      Further, Brazil’s stance seemed hypocritical when viewed in relation to the Elian Gonzalez scandal that occurred ten years ago.  Elian Gonzalez and his mother fled Cuba in 1999 with hopes of arriving in the United States, but only Elian survived their boat accident.32  Elian was kept separated from his father in Cuba for seven months due to numerous United States court rulings, sparking outrage by Brazil and other Latin American countries that believed, rightfully so, that the United States had violated international law norms.33  The shocking resemblance between the two cases is furthered by similar uses of local political influences.  The Cuban exile lobby used Elian’s case to fight back against Fidel Castro and keep Elian in the United States through one of their powerful exile political brokers’ clients, a judge who ruled to have Elian stay in the United States.34  Similarly, Sean’s step-father and his family are extremely connected lawyers in Brazil, which caused some to fear corruption of the legal system.35  These political influences were able to drag out Elian’s case for seven months, and, unfortunately, they have done the same for Sean for over five years.  The harm has already been done to both Mr. Goldman and Sean, but it still resulted in a peaceful ending even though the international law treaties were not initially abided.36   

____________________________________________________________

[1] Jeffrey L. Dunoff et al., International Law Norms, Actors, Process: A Problem-Oriented Approach  360 (2d ed. 2006).

[2] Child Abduction: Parental Kidnapping & The Hague Convention, http://law.freeadvice.com/resources/articles/parental_kidnapping_and_hague_convention.htm (last visited Dec. 22, 2009).

[3] Id.

[4] Rafael Romo et al., Brazilian Child Custody Decision Could Come Tuesday, CNN World, Dec. 22, 2009, http://www.cnn.com/2009/WORLD/americas/12/22/brazil.custody.battle/index.html.

[5] Charter of the United Nations, Art. 2(2) (June 26, 1945), available at http://www.un.org/en/documents/charter/chapter1.shtml.

[6] Child Abduction: Parental Kidnapping & The Hague Convention, supra note 2; see also Int’l Child Abduction Remedies Act, 42 U.S.C. § 11603 (1988).

[7] Child Abduction: Parental Kidnapping & The Hague Convention, supra note 2; see also Friedrich v. Friedrich, 983 F.2d 11396 (6th Cir. 1993).

[8] N.Y. Divorce & Family Law, http://www.brandeslaw.com/International_child_abduction_laws/summary_of%20_basic_hague_rules.htm (last visited Dec. 22, 2009); see also The Hague Convention on the Civil Aspects of Int’l Child Abduction, Art. 13(b) (1980), Art. 20 (1980).

[9] N.Y. Divorce & Family Law, supra note 8; see also The Hague Convention on the Civil Aspects of Int’l Child Abduction, Art. 12 (1980), Art. 13(a) (1980).

[10] Kirk Semple, Court Battle Over a Child Strains Ties in 2 Nations, N.Y. Times, Feb. 24, 2009, http://www.nytimes.com/2009/02/25/nyregion/25custody.html?pagewanted=1&_r=1. 

[11] Bring Sean Home Foundation, http://bringseanhome.org/ (last visited Dec. 22, 2009).

[12] Id.

[13] Id.

[14] Semple, supra note 10.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Semple, supra note 10; see also HCCH, http://www.hcch.net/index_en.php?act=conventions.text&cid=24 (last visited Dec. 22, 2009).

[20] Seth Kugel, The Elian Gonzalez of Brazil, globalpost, Mar. 25, 2009, http://www.globalpost.com/dispatch/brazil/090323/the-elian-gonzalez-brazil?page=0,0.

[21] Semple, supra note 10.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Bring Sean Home Foundation, supra note 11.

[27] Id.

[28] Bring Sean Home Foundation, supra note 11; Edecio Martinez, David Goldman Reunited with Son, Sean Goldman, After Brazilian Custody Nightmare, CBS News, Dec. 24, 2009, http://www.cbsnews.com/blogs/2009/05/14/crimesider/entry5013312.shtml.

[29] Martinez, supra note 28.

[30] Id.

[31] Kugel, supra note 20.

[32] Tim Padgett, The Goldman Controversy: Memories of Elian Gonzalez, Time, Dec. 19, 2009, http://www.time.com/time/world/article/0,8599,1948979,00.html?xid=rss-topstories.

[33] Id.

[34] Id.

[35] Id.

[36] Ayres, B. Drummond, Jr., Political Briefing; Janet Reno Hoists Her Baggage Handily, N.T. Times, Oct. 14, 2001, http://www.nytimes.com/2001/10/14/us/political-briefing-janet-reno-hoists-her-baggage-handily.html.

Advertisements

Leave a comment

Filed under International Law, Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s