Welcome, Guest. Please login or register.

Author Topic: Appeal Filed  (Read 35806 times)

0 Members and 1 Guest are viewing this topic.

Offline tweinstein

  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 1681
Re: Appeal Filed
« Reply #90 on: July 26, 2011, 11:17:20 AM »
Did the final judgment state anything about visitation rights?  I did not read the entire thread, so forgive me if I missed it.  But I am wondering if these results means your wife was given sole aurthority over your children, or if there is room for you to arrange visits and continued contacted.

I guess what I am really wondering is if the LBP is expected to fall off the face of the earth after final judgments like this, or if the court, even though they make a mockery of the system, leaves room for continued co-parenting even if the children can't leave the country.
As Marty Pate did, I can start all over again with a petition for access. The bar is set much lower for this and, given the recent law about Parental Alienation Syndrome, the Brazilian courts seem to be enforcing this (though the children remain in Brazil). Absent that, I think that I am expected to simply fall off the face of the Earth.

Offline tweinstein

  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 1681
Re: Appeal Filed
« Reply #91 on: July 26, 2011, 11:31:38 AM »
:eek: smh...at least when your children finally decide to come see you on their own in the US...you can honestly say you did everything you could to try and have them back...
That's always been my guiding mantra.

I learned one thing from you (or was it the other way around). My case fell apart because the "facts" entered and accepted at the first level were so biased, it was impossible to appeal to a higher court where the rules say that you can't argue the facts, only the interpretation of the law as the relate to the facts. When you filed your petition, I remember you said that you submitted a TON of proof upfront. As you learned through my and other's experiences, once the case starts, your ability to enter or correct evidence is greatly diminished.

For example, the courts ruled that as I had threatened my wife with criminal proceedings and even started an action against her in the United States, they would not return my children because she would not have access to them from prison. What was the evidence they had? I sent her one email that stated, "IF I were to press criminal charges. . ." I then went on in the email to state that I had no intentions as that would be harmful to the children. I tried to explain this to the judge that I had no intention of ever filing charges, but since he did not speak English, he accepted the TP's attorney's out-of-context translation. Anybody who reads this forum knows that I strongly advocate against filing criminal charges, but the official records state that I, "in fact", pressed charges. It's obvious that the Brazilian courts had no interest in verifying the truthfulness of any of this information. A simple phone call or email would have confirmed that there were no charges pending. In truth, I never even spoke to the district attorney.

The following article I wrote two years ago discusses this fact.
http://bringseanhome.org/?page_id=72
« Last Edit: July 26, 2011, 11:35:07 AM by tweinstein »

Offline dmdaven2

  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 700
Re: Appeal Filed
« Reply #92 on: July 26, 2011, 01:04:44 PM »
Yea man, the submission of evidence to the US Dept of State, then to the BCA, then to the AGU...honestly that shit doesn't even make it...Before my trial in April 2010...I had submitted LONG ago my child support check printouts, monthly pay check stubs, photos of every visitation, and various other proofs of evidence. WELL! I get down there in April for the hearing...meet with the AGU, who pulls my file...and asks me questions about visitation. I say...yea...don't you have all the proof in my case file? He gets the file, we look inside and I swear not ONE piece of extra evidence I sent to Daisy to have sent to the AGU was in there. LUCKILY I don't trust anyone when dealing with my case so I brought all the evidence myself (a secondary copy for just in case purposes). Anyways...that evidence won the case for me...without it I WOULD HAVE BEEEEEEN SCREEEEEEEEEWWWED. I swear I would have lost so bad against the "he said she said" that the mothers side tried to use.

So either...the AGU decides what it is they THINK may be useful in these cases...and include only that...ORR the US Dept of State isn't even sending anything extra over there to begin with!  :mad:

Devon Davenport - Father of Nadia Lynn ;)

Offline SageDad

  • Father of Sage
  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 2738
    • HagueAbductions.com
Re: Appeal Filed
« Reply #93 on: July 26, 2011, 01:09:33 PM »
I think you are mistakenly conflating "facts" with arguments and evidence.

A judge determines the facts by interpreting the evidence that's submitted.  Submitting additional evidence is normally not allowed during appeals and new legal arguments or defenses are usually not allowed either (after all the idea is that the original judge got the case wrong based on the legal arguments and evidence that were actually presented.)

If an appeals court cannot revisit the factual determinations made by the lower courts when they interpreted the submitted evidence than a large part of the whole point of appeals is lost and the high courts are at the mercy of the lower courts to make up any "facts" they want based on whatever they feel like.  I don't know Brazilian law, but I doubt it could possibly be that way.

Additionally, exceptions are often made on appeals for "new evidence" if it can proven that the evidence literally did not exist at the time of original trial -- I don't know if this applies in Brazil, but it's not uncommon.  In which case what the AGU should have done was gotten the US to create a certified document with current date and time that stated your wife had no pending charges against her (and never did.)  Other exceptions can be made in these cases based on the principle of the "best interests of the child."  It is manifestly not in the best interest of the child to not use compelling evidence that would not cause delays because of some procedural rule.

I'd be interested to hear what Andrei thinks of the job the AGU did in handling your case.  He knows the case and Brazilian law well and has spoken well of the AGU in the past.
“What you seek is seeking you.”
― Rumi

Offline tweinstein

  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 1681
Re: Appeal Filed
« Reply #94 on: July 26, 2011, 04:43:22 PM »
 Other exceptions can be made in these cases based on the principle of the "best interests of the child."
Interestingly, the appeals court ruled on the AGU's argument regarding the supralegality of the Hague Convention. They agreed that, as an international treaty, it was above normal laws, but they also said that the United Nations Rights of the Child Treaty was in the same category and as such, it was not in the "best interests" of the children to return them.

Offline StrngConviction

  • Left Behind Parent
  • Sr. Member
  • *****
  • Posts: 412
Re: Appeal Filed
« Reply #95 on: July 26, 2011, 11:06:25 PM »
 Other exceptions can be made in these cases based on the principle of the "best interests of the child."
Interestingly, the appeals court ruled on the AGU's argument regarding the supralegality of the Hague Convention. They agreed that, as an international treaty, it was above normal laws, but they also said that the United Nations Rights of the Child Treaty was in the same category and as such, it was not in the "best interests" of the children to return them.
So if my legalaide Irish solicitor doesnt present my article 15 when their CA requested it , I cant appeal on that because it wasnt presented as evidence or considered a fact before the appeal  ?
 I am so P. O over this .
Behind this smile is something only we LBP understand.
                May God be with ALL our children.

Offline tweinstein

  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 1681
Re: Appeal Filed
« Reply #96 on: July 27, 2011, 07:35:26 AM »
So if my legalaide Irish solicitor doesnt present my article 15 when their CA requested it , I cant appeal on that because it wasnt presented as evidence or considered a fact before the appeal  ?
 I am so P. O over this .
Not necessarily. The laws are different in each country. In the United States, it is possible to argue the accuracy of evidence in the higher appeals courts. It is also possible to request that the lower court review the evidence.

Offline SageDad

  • Father of Sage
  • Left Behind Parent
  • Veteran Member
  • *****
  • Posts: 2738
    • HagueAbductions.com
Re: Appeal Filed
« Reply #97 on: July 27, 2011, 11:37:42 AM »
So if my legalaide Irish solicitor doesnt present my article 15 when their CA requested it , I cant appeal on that because it wasnt presented as evidence or considered a fact before the appeal  ?
 I am so P. O over this .
Not necessarily. The laws are different in each country. In the United States, it is possible to argue the accuracy of evidence in the higher appeals courts. It is also possible to request that the lower court review the evidence.

Exclusions against adding additional evidence that is not truly "new" (such as the way when DNA evidence came out it freed many innocent men convicted of rape and/or murder) is a pretty common and reasonable requirement for courts to have.  To allow the re-submission of any/all evidence during appeals amounts to rehearing the whole trial every time.  If the Irish lawyer representing you doesn't submit this during your trial it probably will be inadmissible on appeal.  You should send it to the court yourself.  Find out the court, judge and docket/file number of your case and submit it directly -- bypass OCI, ICA and your useless solicitor.  Will help show the judge that your representation is not really yours too.
“What you seek is seeking you.”
― Rumi

Offline StrngConviction

  • Left Behind Parent
  • Sr. Member
  • *****
  • Posts: 412
Re: Appeal Filed
« Reply #98 on: July 27, 2011, 05:50:51 PM »
Thanks to both
Behind this smile is something only we LBP understand.
                May God be with ALL our children.

Offline FC_Florida

  • Veteran Member
  • *****
  • Posts: 569
Re: Appeal Filed
« Reply #99 on: July 28, 2011, 12:51:59 AM »
I am really sorry Tim to hear about the final ruling. Just hoping you will be able to see your children without any interference from you ex-wife.
* FC_Florida *

Offline sue

  • Global Moderator
  • Veteran Member
  • *
  • Posts: 3053
Re: Appeal Filed
« Reply #100 on: July 28, 2011, 09:29:03 AM »
I'm really sorry Tim.  I hope your children will be able to come home for visits and that the mother doesn't cause anymore trouble.