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Author Topic: Need Help.....Court granted my wife permission to take son (5) to Brazil.  (Read 10551 times)

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Offline Scottsfx

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Hello everyone my name is Scott and my son (age 5) is Riley.  We live in Los Angeles, CA

Last April the Court granted permission to my wife to take my son to Brazil for a 14 day Christmas Holiday and ordered me to cooperate by signing any documents necessary for my wife and son to get passports.  Both have dual citizenship.

The Court found that since the child custody evaluator had testified that Riley needed to socialize with other children more,  it was therefor in Riley's best interest to go to Brazil to socialize.   

The Court also said that he believed my wife when she said she would bring Riley back.  He also noted that he had a another very similar case and had let the mother take the child and she had brought him back.

On my side I showed that my wife met 7 of the 9 "red flag" warnings (per National center of missing and exploited children [ncmec]).  These "red flags" are also incorporated into California family law almost verbatim.    I broke each one down and demonstrated how it applied to her.

I also submitted a 5 page affidavit from Counsel at National Center of Missing and Exploited Children which detailed the "Red Flags", the profiles of abductors, the risks, the damage that can be done to the child, and the difficulties in getting the child returned.

I plan on filing another O.S.C. in an effort to introduce some new evidence that might persuade the Court to change his mind or that might set things up right for an appeal.   

What I'm specifically looking for in the interim is an expert witness that could testify in Court that could act as a counter balance to the evaluators testimony.  Someone in the Los Angeles or even just in the California area.   Also if anyone knows of a good attorney that is knowledgeable in this area that could help.  I've been pro per for 4 years now and have gotten pretty good at it but I could use some help trying to change the Courts mind.

Thank you for any help in advance,

Scott

Offline luvthelake

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Just wanted to welcome you to the forum, I wish it was for a different reason. I cannot help you with the info you are asking for, but after all I have read on here for years you have a right to be concerned. Maybe some with more experience will give you a reply, but you need to do everything you can to keep your son from leaving the states, if you can try to go with them or anything you can think off, why does a judge think he needs to to Brazil to get to solocize, he can do that here. Good luck and I will say a prayer that the judge see's the light before it is to late.

Offline SageDad

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I would think almost any parent in these forums with a child abducted to Brazil could work as an expert witness with regards to the risks associated with allowing travel to Brazil.


The simple fact of the matter is that if the mother decides not to return that's basically the end of the story.  There is next to nothing that can be done to compel a the child's return home.


Brazil's signature to the Hague Abduction Convention may as well have been drafted on toilet paper.
“What you seek is seeking you.”
― Rumi

Offline IBI010

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Although things are getting better in Brazil regarding return the children, I would say that this is one fact that you can use in your favor.
Also, does the mother has resources to stay in Brazil? (family, money, etc)
And, her family has contacts, in Brazil, if you have contacts and money you can get about anything from the court, but if don't have money (mainly) and contacts, are very tough to use the justice on your "side" You can use this as argument to no authorize him to go to Brazil.
If you don't have any way to avoid the trip, document everything possible, date do go to brazil, date to return, flight tickets, where the child will be staying, who will take care of him.
His classes back in US, when does start it, etc, in this way, you will be protected unde the Hague, I know it's a shame, but if is the only way, gather as much facts that the child went to Brazil for a VACATION. Ahead you may need it.

Offline NoansDad

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SageDad wrote.  There is next to nothing that can be done to compel a the child's return home.

Absolutely incorrect..... There is nothing, repeat NOTHING, that can be done to get the child to return. It is source of pride in Brazil that they are willing to stand up to the USA and not return children. The Hague is as absolutely useless as Susan Jacobs in a beauty pageant in Brazil.
Noan, your Dad loves you and misses you every single day.

Offline AnotherDad

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I read somewhere in this story that the dad was ordered to sign his permission for the wife to take the kid to Brazil. Listen, I've never heard of a judge ordering a person to give permission. Normally, if a judge is making an order, her doesn't need the dad to sign away his permission. The judge just orders the permission for the mother directly. Having said that, if it were still left to me to actually sign something to say I agree, I would NEVER do it. After the Goldman incident and other info from this site, I don't think I could ever sign for permission for a Brazillian wife to take my kid to Brazil w/o me for any reason. Even tho I've met wonderful Brazilian women right here on this site who have worked to help David, I think those might be the only exceptions to my statement. Further, I believe that the Goldman decision has almost made it harder for an American to get a favorable decision in a Brazilian court. Final word: DON'T LET THAT BOY GO THERE.

Offline StrngConviction

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I read somewhere in this story that the dad was ordered to sign his permission for the wife to take the kid to Brazil. Listen, I've never heard of a judge ordering a person to give permission. Normally, if a judge is making an order, her doesn't need the dad to sign away his permission. The judge just orders the permission for the mother directly. Having said that, if it were still left to me to actually sign something to say I agree, I would NEVER do it. After the Goldman incident and other info from this site, I don't think I could ever sign for permission for a Brazillian wife to take my kid to Brazil w/o me for any reason. Even tho I've met wonderful Brazilian women right here on this site who have worked to help David, I think those might be the only exceptions to my statement. Further, I believe that the Goldman decision has almost made it harder for an American to get a favorable decision in a Brazilian court. Final word: DON'T LET THAT BOY GO THERE.
Totally agree.
Behind this smile is something only we LBP understand.
                May God be with ALL our children.

Offline M.Capestro

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Hi Scott,
 
Here are a few suggestions for you.
 
1. There are two fathers from California who have worked with the State Senate on the successful passing of a new abduction prevention law. It was recently signed by the Governor and will be effective January 2013. Here's more info on the Senate Bill: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1201-1250/sb_1206_bill_20120222_introduced.html. These father's may be able to provide some guidance on California lawyers and also may be able to assist you with providing expert testimony. Their names are Randy Collins (www.facebook.com/randy.collins.984) and Jeffrey Morehouse (www.facebook.com/jeffery.morehouse).
 
2. If the judge refuses to change his/her mind on the order that's already been put in place. Ask him/her to amend it to include an order for the establishment of a mirror order in Brazil prior to your wife being allowed to take the child into Brazil. The mirror order should recognize your current child custody rights and state that the US is the "habitual residence" and home country of the child and that any retention in Brazil is in contravention of the Hague Convention.

Offline Scottsfx

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Thanks to everyone who chimed in.

I've wanted to post  before now but it has been really busy in preparing for our final trial and also trying to prevent the trip from happening.


For clarification,  I was ordered to cooperate by signing any documents necessary to facilitate the trip.  That means if my signature was needed for any passports then I had to sign.  Also there's a document I had to sign that would allow my wife to leave Brazil with Riley absent my presence.

In April 2012 when the  trip was first granted by the Court  it ordered my wife to give to me (no less than thirty days before departure) the following:  complete flight itinerary, names, addresses, phone numbers where they will be for the entire duration.  Proof of skype capabilities.

She did not comply with these orders and I came to court Ex Parte one week before departure to try and have the travel halted.

The Court found that she had not indeed complied with the orders.  Never-the-less her non compliance was with out prejudice towards me (meaning that I wasn't injured in any way).  He had her give me all the information that day and had her promise to prove to me that skype was up and running at her parents house in Brazil.

In my exparte I had challenged the Court that it's orders granting the trip were null and void as they were unenforceable.  I cited and based my arguments on re Marriage of Condone (CA court of appeal 1995)  The Condone case basically said that an order sending an american child to foreign country was null and void because it couldn't be enforced.  The Court of appeal said that the travel could occur but some sort of sanction or forfeiture had to be in place to help protect the order.  They sent it back to the lower court with direction to have the traveling parent post a bond and have the orders recognized (aka mirror orders) in the courts of the foreign country.


The Court did it's best to avoid even dealing with the above but I pressed the issue and was told that the travel would be allowed and that the Court would not order a bond because he found that my wife didn't have the financial resources to post a bond.  (The fact that she had no job, no family, no money, no lease, no ties to america was one of my points to begin with)

I then asked for orders requiring mirror orders to be filed in Brazil.  He asked me if I knew what that process was in detail.  I did not.  He told me I could find out then possibly bring it back on another Ex parte.   That was on Friday and she was leaving the next thursday.  It effectively gave me 1 business day. (Friday being gone, Ex parte notice would have to be given Tues. to be heard Wed.) 

I contacted a attorney who specializes in foreign custody matters.  He said I need to decide what gave me the best odds of success and there's where i needed to spend my time, energy, and money.  He said that I had a 1 in 500 chance of stopping the travel at this point,  a 1 in 5 chance that she would return with my son, and a 1 in 2 chance that if she stayed that I would be able to get him returned.  Then he said the best thing that I could do right then was go to church and pray,  oh  and be nice to her so she feels comfortable returning.

They departed on December 20th, 2012.......I have been in Skype with him.....she has been cooperative.....Everythi ng seems to indicate that they will be back in Los Angeles tomorrow at 10:30am.   I will be there.

Here is a link to re marriage of condon (1998)  I feel this sets an important precedent for requiring bonds and mirror orders when International travel is being allowed.

http://law.justia.com/cases/california/caapp4th/62/533.html

Also this kind of ruling was more recently upheld in re marriage of Abargil (2003).  In this case the move away was granted yet held until the bond could be made and orders recognized by the foreign court.

http://www.lawlink.com/research/caselevel3/80045


As a final note it is my intent to contact my representative and see if it is possible to get a law passed that codifies Condon and Abargil.


Second I would like to see a law written to guide the Courts in a manner like this.

Before any international travel is granted by the Court over an objecting party the Court should first determine if....

A.  The country is a party to the Hague treaty.  If it is not then trip is denied.  If it is then.....


B.  Does the U.S. Dept of State find the Country is compliant?  If not..... denied.....if yes then.......


C.  Take in to account all the "red flag" factors etc.

D.  After all that,  if the trip is to be granted the Court must order a substantial bond and mirror orders filed in the foreign country prior to travel (ala marriage of Condon and marriage of Abargil)

Thanks for all your support I will post again with an update tomorrow night.


M. Capestro,


I've talked with Randy several times.  A great guy.




Scott



 

Offline Scottsfx

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It is my pleasure to report that my wife did in fact return and I picked my son up at the airport today.   What a relief!!!


Scott

Offline sue

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #10 on: January 05, 2013, 09:54:33 AM »
That's wonderful news!

Offline tweinstein

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #11 on: January 05, 2013, 12:36:12 PM »
As one of the volunteers for the foundation (and a left-behind parent with two children in Brazil), I have spoken to many parents concerned about a potential abduction to another country. I have always given the advice about mirror orders and posting bond, not as an attorney, but simply as ideas that I though might work. I'm glad to see that there is actually a legal basis for my recommendations.

Offline Scottsfx

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #12 on: September 27, 2013, 04:18:52 AM »
Well .....hello again peeps.

Quick update.    The divorce is finalized.   We had joint physical/legal....(although is the named primary)   I have Riley (on paper) 49.99% of the time.   We had a battle over where he would go to school.   I won that one and he's enrolled and now in the 2nd grade at a school ranking in the top 5% of the Los angeles unified school district near my home.  In order to get that I had to agree to pick up Riley and drop him off across town on my ex's custody days.   Which actually means I see him each and every school day as I pick him up and drop him off. 

However.....once again my ex is petitioning the court for travel to brazil for a week at thanksgiving.

If you follow the thread you are familiar with the arguements I made before which were ignored.

Last time I discovered the case law at the last minute and included them as part of last minute ex parte  hell mary effort.   This time I'll get to prep a full response before the Court commits to a decision.  I will lay out the case law in a detailed manner in a points and authorities supplement.

In short the cases are published appellate decisions were the court had determined that the lower court had issued orders that were not enforceable and therefor needed to add a requirement for a bond and mirror orders in the foreign country before the child could be taken out of the country.

 I found a third case but all the cases involve long term move aways that were granted.  None involve short term visitation granted.

So I need to find cases were children were tshort trips and then kept overseas.    In my particular case my ex has been granted two trips so far and has brought him back.  Of course we all know that doesn't mean she will this next time but it's encouraging.   But if anyone knows of any cases where the abducting parent made multiple trips first or better yet made multiple trips and had court orders to return but didn't those would be really useful.  Of course Goldmans is the gold standard but there were no current court orders in effect when it began.

Thanks in advance and I'll keep ya posted.

Scott

Offline tweinstein

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #13 on: September 27, 2013, 10:28:50 PM »
The reality is that it doesn't matter whether you have court orders or not prohibiting the mother from traveling to Brazil. You could have a court order and unless you are at the airport with the order in hand, the airlines and immigration will allow her to board the plane with your child. Unlike Brazil, which has very strict exit controls and consequently very few outgoing cases of child abduction, the United States has no exit controls in place.

Offline BringJusticeHome

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #14 on: September 28, 2013, 02:14:10 AM »
Tim, this is not 100% true!!!! There is a program in place to prevent this from happening, I can't speak of the effectiveness of it, but I am very much familiar with the process and what needs to be done..