New Jersey dad wins international custody case

David Goldman in Brazil (AP Photo/Silvia Izquierdo)

The Chief Justice of Brazil said today that a New Jersey father whose ex-wife took their son to her native Brazil and never returned, has sole custody of the boy, and ordered the boy's Brazilian relatives to turn him over to his father.

David Goldman, of Tinton Falls, New Jersey, has been fighting to regain custody of his son for five years. His wife, Bruna Bianchi, took the boy to Brazil for what was supposed to be a vacation, but did not return. Instead she divorced her husband and married again, to Joao Paulo Lins e Silva of Brazil. Goldman sued for custody under the Hague Convention on the Civil Aspects of International Child Abductions, claiming that his wife had in effect taken their son permanently to Brazil without his permission.

Bianchi died in childbirth last year, a complication that obviously put a new complexion on the case. Lins e Silva inherited custody of the boy and sought to retain custody.

Last week, a lower-court judge in Brazil ruled that Goldman had sole custody and should be allowed to take his son home. Goldman is in Brazil now, accompanied by his US Congressman, Representative Christopher H. Smith (R-NJ-4). Another Justice of the Brazil Supreme Court had stayed the order, but today the Chief Justice vacated the stay and affirmed the lower-court ruling.

The Hague Convention sets forth a clear process by which the parent of an abducted child may seek the return of that child. The Convention further states that the only grounds for refusal to return a child are:

1. That the complaining parent had surrendered custody already,
2. That the child might suffer grave physical or psychological harm if returned, or:
3. That the child objects to being returned and is old and mature enough for his or her views to be heard.

The Convention also says that when the child reaches the age of 16, the Convention no longer applies.

Lins e Silva and his relatives and friends have alleged previously that the boy, Sean Goldman, objects to being returned. However, the boy is now 9 years old, and most attorneys familiar with such cases say that a child younger than 12 years old cannot be said to be old enough and mature enough, within the meaning of the Convention, to have his objections taken into account. The Supreme Court justice who stayed the original return order apparently wished to have his colleagues address the question of whether the boy was in fact old and mature enough to be heard on the matter of his residency in Brazil v. the United States, but the Chief Justice found no merit in that suggestion.

The opposing lawyers say that the Brazilian family might still appeal, but their chances of prevailing were slim to none.

The case has strained US-Brazilian diplomatic and trade relations, to the extent that Senator Frank M. Lautenberg (D-NJ) placed a hold on a $2.75 billion trade pact between the two countries, this after the Supreme Court justice issued the stay. After today's ruling lifting the stay, Lautenberg lifted the hold, and the Senate passed the measure.

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