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David and Sean Goldman

  

Country: Brazil

Kidnapped: June 16, 2004

Status: Child Returned


Overview

The complex web of legal systems leaves many victims in their wake, none more vulnerable then children. The parental abduction of Sean Goldman by his mother, and subsequent separation from his father for five years, caused a media storm.  The conflicting legal decisions in the U.S. and Brazil caused media frenzy, and a variety of people including the highest levels of government and people of cultural sway, like Oprah Winfrey, brought further attention.  Though this was not a case of the government using detainment as a means of international pull, it constitutes a ShowTrial because of the high levels of media attention and lack of cooperation between governments.  The child, though not held by the government, was nonetheless detained against his will, and he and his father had numerous rights violated.

Parental kidnapping is not uncommon, yet most cases do not generate as much attention as this one.  After four years of battling to regain custody of his son, David Goldman gained so much knowledge on parental kidnappings and international complexities that he created a foundation to help those in similar situations.

Background

On December 17, 1999 David Goldman married Brazilian Bruna Bianchi Carneiro Ribeiro in Eatontown, New Jersey.  The couple had son, Sean, in Red Bank, New Jersey on May 25, 2000. 

On June 16, 2004 David drove Bruna, her parents, and Sean, who was four at the time, to Newark airport.  They were going to Brazil for what was supposed to be a two-week vacation.  But three days later Bruna called David to tell him she and Sean would not be returning to the US.  Bruna told David that if he wanted to see Sean again, he would have to sign custody of their son over to her.  David did not sign any papers and a legal battle ensued for five years.

Case Report

David began his battle in New Jersey.  On August 26, 2004, the Superior Court of New Jersey awarded David custody of Sean.  The court ordered Bruna and her parents to immediately return Sean and informed them that their continued behavior constituted kidnapping.  Bruna and her parents did not comply with the order, and a year later, the court found Bruna and her parents to be in willful contempt of the court’s orders.  The court also found Bruna’s retention of Sean actionable under the International Parental Kidnapping and Crime Act of 1993 in addition to New Jersey criminal statutes.  However, this did not bring Sean home.

Both the U.S. and Brazilian governments stated this matter fell under the 1980 Hague Convention on Civil Aspects of International Child Abduction.  The countries have both agreed to the Hague Convention, whose objective is to provide a speedy and efficient process for returning abducted children to their habitual place of residence, in this case the U.S. 

Abiding by the Hague Convention, David filed an application for the immediate return of Sean on September 3, 2004.  This should trigger international judicial cooperation between the U.S. and Brazil.  Under Article 12 of the Convention Brazil’s judicial authority is required to order Sean’s return to New Jersey within six weeks after an application has been filed.

“The court stated Bruna had committed an illicit act under the Hague Convention, but ruled for Bruna because, since the court proceedings had taken so long, returning Sean after so much time had passed would be unhealthy.”

By November, there was no word regarding the international judicial proceedings.  David therefore began judicial proceedings in the Federal Court of Rio de Janeiro, an option prescribed in the Hague Convention.  Months later, in May of 2005, the court put the case on hold after Bruna filed a motion contesting the competence of the Federal Court.  This hold was in place until September 21, 2005, nearly a year after David first brought suit.  Bruna’s appeal was dismissed and less than a month later, the court ruled.  The court stated Bruna had committed an illicit act under the Hague Convention, but ruled for Bruna because, since the court proceedings had taken so long, returning Sean after so much time had passed would be unhealthy.

David appealed up the Brazilian court system over the following years.  His appeal to the judiciary was denied, again, because too much time had passed.  The Superior Court of Justice cited the same reasoning, as did the Federal Supreme Court.

While David’s case was making its way through the Brazilian courts, Bruna filed for exclusive custody of Sean.  Under the Hague Convention, Sean should have been returned to the U.S. for a hearing to determine custody, but Bruna was granted custody by the Brazilian court.

“Bruna and her family prevented David from seeing or speaking with Sean for four years. “

In 2008, without any notification, Bruna divorced David in a Brazilian court.  She married her Brazilian lawyer, Joao Paulo Lins e Silva, an expert in international family law, including child custody cases.  Unfortunately, on August 22, 2008, Bruna died during childbirth.  David discovered this, not from Bruna’s family, but from the media.  He immediately flew to Brazil and discovered Lins e Silva had petitioned the Brazilian courts for custody rights of Sean and was trying to replace David’s name with his own on a new birth certificate for Sean.  Temporary custody was given to Lins e Silva on the basis that Sean needed familiar surroundings.

Bruna and her family prevented David from seeing or speaking with Sean for four years. The tides turned in October of 2008 when the Federal Court of Rio de Janeiro finally granted David visitation rights.  He was able to see Sean whenever he was in Brazil from Friday at 8PM to Sunday at 8PM, but Lins e Silva appealed the court’s decision.  The court maintained David’s visitation rights, but changed the times from Saturday at 8PM to Sunday at 8PM.  The court also required that Sean could not be publicly exposed during the visits.

Two days later, David went to Lins e Silva’s home, the location set by the court, with two court officers, two federal agents, and a bodyguard.  Lins e Silva had intentionally taken Sean away.  Days later, Lins e Silva petitioned the Federal Court excusing his absence due to ignorance even though he was served the court decision prior to the visit.  Despite not being there, he told the court David showed up to his home with ten journalists, reporters, and television cameras.  The court officers who accompanied David testified this was not true, and the court convicted Lins e Silva of litigating with malicious intent and an act offensive to the dignity of justice. 

In the U.S., the House of Representatives passed a resolution on February 11, 2009, calling on Brazil’s central authority to abide by the Hague Convention and return Sean to his father.  The State Department’s April Report on Compliance with the Hague Convention on the Civil Aspects of Child Abduction singled out Brazil for its repeated violations of the treaty.  The report noted Brazilian courts had a pattern of legitimizing abductions by claiming the abducted child has become “adapted to Brazilian culture.”\

“Senator Frank Lautenberg of New Jersey placed a hold on a bill that would allow Brazil and other countries to export some products duty-free into the U.S.”

December 2009 marked a turning point for David in his quest for his son.  On December 16, a Brazilian federal appellate court ruled Sean should be handed back to David.  However, the next day Supreme Court Justice Marco Aurelio de Mello postponed that decision until February 2010, when the justice returned from vacation.  The hold was in order to review of a writ of Habeas Corpus filed by Sean’s maternal grandmother, Silvana Rebiero, who was not a party to the case.

On December 18 David appealed to overrule the stay.  Brazilian Advocate General Luiz Inacio Adams also filed a writ of mandamus in the Supreme Court against Justice Aurelio de Mello because the Supreme Court had ruled a writ of habeas corpus is not the appropriate legal instrument to ensure custody of children.

In response to the custody battle, Senator Frank Lautenberg of New Jersey placed a hold on a bill that would allow Brazil and other countries to export some products duty-free into the U.S.  The hold, he said, would last until Brazil returns Sean to his father.

AFTERMATH

On December 22 Brazil’s Supreme Court ruled in favor of David.  On Christmas Eve, David and Sean were reunited.  They flew to Orlando, Florida where the two spent some time with David and his family who had not seen Sean in five years.

David allowed Sean’s maternal grandparents to visit Sean if they agreed to certain conditions, including dropping all Brazilian lawsuits.  They refused and brought suit against David in New Jersey.  The Superior Court judge denied Sean’s grandparent visitation rights.  The judge blasted them for their lack of gratitude and unrelenting legal battle, and accused them of emotional abuse.  However, he stated that if they complied with David’s reasonable conditions, they would be granted visitation.

David Goldman is the Cofounder and Director of the Bring Sean Home Foundation. The organizations mission is “to assist victims of international child abduction, educate the public about the issue, prevent future abductions, and draw attention to the increasing number of cases that currently exist with the purpose of returning abducted children to their home countries and reuniting them with their left-behind families.”