Questions About the Hague Convention or Cultural Perspectives

[tweinstein]

Please feel free to ask in this thread any questions you have about the Hague Convention and its implementation in Brazil and around the world. This thread is also for asking questions if you find yourself having difficulty understanding the cultural differences between the United States and Brazil or another country.

Throughout this community, there are a number of people who are able to provide information from a number of different perspectives. Whether as someone who is currently involved in a Hague case, such as myself, Roger, an attorney in Brazil, or even one of the many members who grew up or currently reside in Brazil or another country, I'm sure you'll find someone to answer your questions.

Please don't be shy. The only dumb question is the one that is never asked!

[fernanda]

Brazil seems to flaunt international law. not only the great train robber. but the Italian terrorist who killed 4 people in Italy. the judges there are incompetent they take joy in  doing so. One thing that bothers me, is if we stopped sending social security or any spousal support to these who flaunt the law we could reduce these cases. I know for a fact they gave custody to an aunt in my case. and she gets the social security check. so she needs a car and driver to take her around paid for by the U.S. when she has no custody in Brazil. It is like the bully who steals and says possession. is 90% of the law Obama may be able to help him as they like Obama there. they had a street parade  praising the US for electing Obama

[fernanda]

I wonder who is more crooked, the politician who built the huge castle outside Sao Paulo, or the judges who give custody of a child to someone who doesn't have custody in the US.? I wonder how they would like it if US citizens kidnapped their children and took them back to the U>S>  and gave custody to an aunt or step parent against the wish's of the surviving biological parent, who in fact had legal custody in BRAZIL?

[fernanda]

meant to say the aunt has no USA custody, so USA social security should not be sent to her. perhaps escrow till child reaches 18? supporting a person that flaunts US law with US tax funds seems to encourage this type of behavior. if 2 parents have a dispute, lets look at the facts. when a biological parent has his child taken away by a non parent there had better be big evidence they are unfit. Brazil seems to favor the father, and the Brazilian resident over a non Brazilian. This is wrong and the world needs to know this.

[tweinstein]

Fernanda,
I'm not completely following your story. Maybe you could add a thread to the section titled, Other Abductions and add more details. Thanks.

[Wendy]

I have to say I agree...I'm not sure what your point is Fernanda?

[TomD]

A couple of thoughts about the Hague Convention:
Articles 11, 12 & 13 seem worth examining.
Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.

Does anyone know if Brazil was ever asked to give a statement of the reasons for the delay? In David's case or any other case? If so, how did they reply?

Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. (emphasis added)
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

The first paragragh, I believe may have been cited by Brazil's courts as a reason why Sean should not be returned under the Hague treaty. But that is clearly based on an erroneous interpretation of this article. The one year period is defined as the time between the date of the wronglful removal and the date of commencement of proceedings, not the date the requested state reaches a decision. So, for David's case. and no doubt many others, the delay in acting does not give Brazil a valid way to avoid the strong provision italicized above. This fact also makes the exception in paragraph 2 irrelevant (unless it is demonstrated that the child is now settled in its new environment).

Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b)

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there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
 

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.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
 
Clauses a) and b) have also been cited as exceptions (not sure if so in court rulings) that justify retaining a child in Brazil. But clearly, a) does not apply to Sean Goldman and b) while subject to interpretation fails because Brazil never could establish "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
 
So my reading of these articles (I am not a lawyer) clearly sends Sean and other abducted children back to the home of habitual residence, and it does not matter that the taking parent was unhappy or any of the other issues being brought up about the left behind parent. That is the treaty Brazil agreed to. So we need to get them to comply with its terms.
Am I reading this correctly? Roger, Tim, anybody?
 
 
 
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[sue]

Isn't that something?  I'm sure Tweinstein can answer this one.

[tweinstein]

A couple of thoughts about the Hague Convention:
Articles 11, 12 & 13 seem worth examining.
Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.

Does anyone know if Brazil was ever asked to give a statement of the reasons for the delay? In David's case or any other case? If so, how did they reply?
I know that in my case, I did not ask for a specific reply. It took Brazil 10 months to even file the case after I petitioned the government. It then took them another 7 months for the hearing. I don't think that asking for an explanation would have or will have any effect on my case. The only guarantee about Brazilian justice is its speed - SLOW!

 

Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. (emphasis added)
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

The first paragragh, I believe may have been cited by Brazil's courts as a reason why Sean should not be returned under the Hague treaty. But that is clearly based on an erroneous interpretation of this article. The one year period is defined as the time between the date of the wronglful removal and the date of commencement of proceedings, not the date the requested state reaches a decision. So, for David's case. and no doubt many others, the delay in acting does not give Brazil a valid way to avoid the strong provision italicized above. This fact also makes the exception in paragraph 2 irrelevant (unless it is demonstrated that the child is now settled in its new environment).You are completely correct. The problem is that most judges have no familiarity with the Hague Convention and its proper application. The United States and other governments have tried unsuccessfully to educate judges and attorneys in Brazil. There was a major meeting in December, 2006 for this purpose. Interestingly enough, Joao Paulo Lins e Silva was one of the few private attorneys invited to participate in this seminar. In my particular situation, I am the first(and possibly the only) Hague case in the state of Bahia. The Brazilian Central Authority tried unsuccessfully to convince the judge to accept help from a liaison judge with experience in Hague cases. He refused and I was told that it was his discretion to do so. As in the United States, judges are affored extreme latitude in how they do their job.

 

Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b)

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
 

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.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
 
Clauses a) and b) have also been cited as exceptions (not sure if so in court rulings) that justify retaining a child in Brazil. But clearly, a) does not apply to Sean Goldman and b) while subject to interpretation fails because Brazil never could establish "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
 
So my reading of these articles (I am not a lawyer) clearly sends Sean and other abducted children back to the home of habitual residence, and it does not matter that the taking parent was unhappy or any of the other issues being brought up about the left behind parent. That is the treaty Brazil agreed to. So we need to get them to comply with its terms.
Am I reading this correctly? Roger, Tim, anybody?
Again, you are interpreting this clearly. In terms of part A, any parent with full or partial custody qualifies. In my case and David's, we were married at the time of removal and thus were exercising our rights of custody. For part B, most abducting mothers will claim to the courts that the situation was intolerable for the child. I know my childrens' mother did for me. However, in conversations with her attorney, he even admitted, that like Bruna, she never said bad things about me. It is all a legal strategy.

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Unfortunately, in almost all cases, Brazilian judges consider the cases to be one of custody and not the violation of an international treaty. It is very unfortunate that David has been dragged into so many extraneous legal battles. My attorney has argued unsuccessfully to the judge that because of the delays, things which shouldn't be an issue are. The Convention was created so that these battles would be fought in the appropriate legal jurisdiction. All of these battles that David is fighting should be fought in New Jersey(where presumably justice would be more fair and expeditious).

In fact, my attorney in Brazil advised me to not even respond to any extraneous arguments by my wife's attorney. He advised me that by responding, I was lending credibility to her arguments. At the court hearing, I was asked multiple questions about our marriage, etc., all indications that the judge considered it to be a hearing over custody. My attorney repeatedly reminded the judge that we were not arguing that but rather Brazil's obligation to comply with an international treaty that it signed.

[joey2051]

I saw this on facebook and was curious myself;

Because the case is now in the federal courts, they pretty much have to abide by the Hauge since they signed it, correct; I'm sure theirs a little chance they can turn it into custody but this probably pretty slim, correct.

Would love to see JPLS come to America

[tweinstein]

I saw this on facebook and was curious myself;

Because the case is now in the federal courts, they pretty much have to abide by the Hauge since they signed it, correct; I'm sure theirs a little chance they can turn it into custody but this probably pretty slim, correct.

Would love to see JPLS come to America

They don't have to do anything. My case has always been in the federal court system. Our hope is that the judges will now have more familiarity with the Hague and be more likely to implement it correctly.

[joey2051]

Do you have any clue what its looking like right now?

[joey2051]

Do you have any clue what its looking like right now

[tweinstein]

I have access to the online court dockets, but my Portuguese isn't good enough to fully understand them. Every time I have asked someone to translate them for me, they always indicate mundane activities rather than anything substantive.

My case is in the state of Bahia while David's is in Rio where the judges should be more familiar with the Hague Convention. I believe that like David, my case is influenced by the name recognition of my wife's attorney. His father was at one point, the chief justice of the state(NOT federal) court system. We can hope that now that David's case is in the federal system, the influence of the LeS family will be less, but that is no guarantee.

[TomD]

tweinstein, thanks for your comments.  
Regarding Article 11, it may be true that asking for an explanation of the delay would not have an immediate effect on your case, or David's, but it might still be a valuable weapon in the strategic war. The Central Authority of Brazil would have to explain in writing why Brazil permits these inexcusable delays to hamper or defeat justice being served.  In effect, Brazil has to put in writing to the US State Department why it allows these delays.  That is more evidence for our government to use in arguing that Brazil is violating the treaty that it is pledged to honor.  That is for the whole world to see.