Brazil and International Child Abduction

A case of a Brazilian woman arrested and imprisoned in a foreign country for parental child abduction. Cátia Gomes, from the Brazilian state Bahia was arrested at a German airport upon her arrival there. She was charged with abducting her 6 year old German born child. She had joint custody of the child with her German ex-husband. She brought the child to Brazil supposedly for a short vacation with her ex-husband’s permission and then simply refused to return at the pre-arranged time. She left the child in Brazil and had gone back to Germany where she had lived in order to contest custody again. That’s when she was arrested and in our opinion should stay arrested and behind bars until the child is returned.

If all this sounds vaguely familiar that’s because it is all too common. Just look back at the case of Sean Goldman the US born child of a Brazilian mother Bruna Bianchi and American father David Goldman. Once again it was a case where the mother (while still married) brought Sean, then only 4 years old, to Brazil supposedly for a two week vacation in 2004. She simply didn’t go back, took up (conjugal) residence with a Brazilian boyfriend applied for a divorce in Brazil and was granted one, only because the boyfriend, João Pedro Lins e Silva, was a lawyer and from a family of influential lawyers. Shortly thereafter Bruna and João Pedro married despite the fact that at least in the US her marriage still hadn’t been disolved so now she was both a kidnapper and bigamist.

Bruna subsequently died during the birth of her child with João Pedro and he then filed for custody of Sean. He almost was able to change Brazilian law, which gives no legal rights whatsoever to step-parents, when through his family’s influence on the Judiciary he filed for custody based on “Paternity by Affection” and as a result Sean remained here in Brazil until finally turned back over to his father on December 24, 2009.

There was also another case where a Brazilian woman Fernanda Guiguer was arrested and jailed in London for supposedly abducting her daughter from the biological father’s London home. In all of these cases the Brazilian government and Brazilian judicial system go to the limits to protect the abductor. They even ignore both Brazilian and international law; they ignore the very Constitution of Brazil in doing so.

This begs the question… WHY???

Why would they do this rather than return the child and be done with it? Brazil’s nationality law bestows citizenship on anyone born on Brazilian soil (except children born to foreigners in Brazil in the service of their nation) so, you from any country in the world have a child here, your child is automatically Brazilian. This is the legal concept of Jus Soli. The nationality law also follows the concept Jus Sanguinis which means that a child born to a Brazilian parent regardless of where that child is born is also a Brazilian citizen; and once in Brazil is considered Brazilian above all other citizenships that the child may have. Brazilian law also prohibits the extradition of any Brazilian citizen, regardless of the crime that extradition is being sought for. They are simply “untouchable” to legal authorities outside Brazil.

These are facts that abducting (Brazilian) parents rely upon. They know that if they can get to Brazil with their child that there is little hope for the child to be returned to the custodial (foreign) parent; or at least that the process will drag out for years. It doesn’t matter how they get back to Brazil, whether it be using false documents, breaking any law in the book; once back on Brazilian soil they are “untouchable” and the child’s custody will be determined here in Brazil, by Brazilian laws, despite any other Conventions and Treaties to which Brazil is a ratifying nation. This is something that ALL abducting parents are well aware of. They are also well aware of the fact that Brazil has a long history of signing Treaties and Conventions and then ignoring them.

They are pathetic as far as honoring their obligations under treaties and always have been. Abducting parents also know that the Brazilian judicial system is up for sale to the highest bidder, whoever has money and influence can get whatever they want from courts here.

So what does this all mean?

Well, simply put… if you have a child that has even one drop of Brazilian blood, regardless of where in the world you are – your child is simply not immune from this kind of abduction. If your child’s custody is at stake and your spouse manages to bring the child to Brazil, with or without your permission, kidnapped or not your chances of getting your child back anytime soon is ZERO. You will be in for the legal battle of your life if there is any hope at all in getting your child back into your custody and back to your home country and you’re not only going up against your former spouse, but against an entire country and it’s laws and government who simply will do everything to protect the spouse, who has broken the law, simply because they are a Brazilian citizen.

If you are married to a Brazilian and have a child, if the continued health your marriage is at all in doubt, don’t even dream of coming to Brazil on a vacation with the child or allowing the child to come with your spouse… you could be jumping right into the middle of an international incident if you do.

Some interesting points below highlighting Brazil by an expert in International Child Abduction;

From an expert report that I prepared recently – and that was submitted to a California court – on Brazil’s practices concerning international child abduction:

“Congress requires the U.S. State Department to determine the compliance by U.S. treaty partners with the Convention. The State Department’s annual Compliance Reports are, in my opinion, extremely reliable and authoritative (although often unduly restrained and “diplomatic”).

In its most recent report the U.S. State Department has singled out just five countries as being either ‘Not Compliant’ with the Hague Convention or as demonstrating ‘Patterns of Non-Compliance with the Convention.’ Brazil is one of the five countries. Indeed, in each such report for the past five years Brazil has been declared to be ‘Not Compliant’ or to demonstrate ‘Patterns of Non-Compliance.’

Brazil is the only country with the dubious distinction of having been singled out in that way in each and every such annual report.

It is my opinion that, when a court is asked to bar a child’s overseas visitation, it should balance the extent of the risk that a particular parent will abduct the child with the extent of the risk that the foreign legal system will not promptly effectively return the child if the child is retained in that country.

At one extreme is a child’s potential visit to a non-Hague country that is a well-established safe haven for international child abduction such as India or that clearly does not adequately comply with the Convention such as Brazil.

In my opinion, a court should require far fewer warning signs that indicate that the parent might keep the child in such a country in order to justify – and to necessitate – an injunction barring such travel, since the risk of a mistake is so extremely high.”

(source: J. D. Morey a US lawyer concentrating on International family law issues)

According to A Family Resource Guide on International Parental Kidnapping, published by the US Department of Justice, profiles of parents who may commit international parental abduction include:

  • Parents who have threatened to abduct the children or who have abducted them before
  • Parents who believe that their children have been abused, and who have social support for this belief
  • Parents who are paranoid or sociopathic
  • Parents who have strong ties to another country and were in a mixed-culture marriage
  • Parents who feel disenfranchised by the US legal system (especially those who are poor,  members of minority groups, or subject to abuse) who have family and social support
  • Other factors and warning signs associated with abduction include:
  • Parents who have no jobs or who are financially independent
  • Parents who lack strong ties to their communities
  • A parent who take steps such as quitting a job, selling a home or terminating a lease, selling furniture or putting it into storage, applying for passports for the children,  seeking medical and school records for the children, and/or changing his or her appearance
  • A parent whose immigration status affects his or her ability to stay in the US, especially if this status has changed recently
  • A parent with a history of domestic violence or child abuse
  • A parent with a criminal record

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