I married my wife on December 21, 1996, in Pittsburgh, PA. Our first child, Paul, was born April 2, 1998 in Pittsburgh. Our second child, Anna, was born February 20, 2001, in Pittsburgh. Both Paul and Anna have Brazilian passports due to their mother's nationality(1). As a result of our marriage, my wife also has both Brazilian and United States passports.
Throughout our marriage, my wife regularly took the children to Brazil each winter and summer. Starting when Paul entered Kindergarten, I did not allow her to take him in the winter as he would be missing school. In June, 2006, my wife left for Brazil with the children. Her return was scheduled for August 2006. I visited Brazil, as usual, in July of 2006. About the date of her return, my wife notified me that she would be staying in Brazil with the children.
In September, 2006, I sought a court order in the United States to establish their habitual residency, seek their return, and obtain primary custody. The court established residency, ordered the return of the children but gave primary custody to my wife(2). Although I did not obtain primary custody, my custodial rights were preserved as required to petition under the Hague Convention. My wife was properly notified and had legal representation at the hearing.
In response to the order in the United States, my wife obtained a court order in Brazil giving her full custody of the children and legitimizing her presence in Brazil with the children. Her attorney cited as evidence a United Nations law that has never been accepted as valid by the United States(3). Being as I was not notified of the hearing, I did not have legal representation.
In October, 2006, I petitioned the U.S. Department of State under the Hague Convention. I registered my children and wife with Interpol. They immediately transmitted my request to the Brazilian Central Authority. Despite providing 2 valid addresses and multiple phone numbers, Brazil did not file a case against my wife until July, 2007. They claimed that Brazilian Interpol took that long to locate my children(4). In March, 2008, I was given 10 days notice to be in Brazil for a hearing about the case.
At this point and since the illegal retention:
a. There has not been a ruling and I do not foresee one coming in the near future.
b. My wife continues to be in defiance of the order of court in the United States.
c. There have been 4 different case workers at the Department of State, Office of Children Issues. Because communication between them and the Brazilian Central Authority(BCA) is strained, I have learned the majority of developments in my case through unofficial channels such as the BCA themselves, the federal attorney handling my case, my children or wife(5).
d. I have been able to maintain a relationship with my children and hope that through this, they will choose to live in the United States when they get older.
Footnotes
1. If one of the parents of a child is a Brazilian citizen, then the child is a Brazilian citizen, regardless of place of birth or any other citizenship that may be possessed by the child.
2. My wife was a stay-at-home mother and as such, was considered by the courts to be the primary caregiver. My attorney explained to me that the court's preference is generally to maintain status-quo and the ruling did NOT in any way express a determination of my fitness as a parent.
3. This law is designed to ensure the safety of children in war-torn areas such as Afghanistan or Somalia.
4. My wife has never hidden the children. Thus it should have taken Interpol no more than a few days to "locate" them.
5. Information from my children is limited to comments such a "I was visited today by a psychologist" or "My mother is at the lawyer's office". I do NOT believe they understand their presence in Brazil as illegal.
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