He had an enviable life: a successful modeling career, a beautiful wife, a home with land and a fishing river, and an energetic baby boy, Sean. David Goldman and Brazilian fashion student Bruna Bianchi met in Milan in 1997 and were enamored with each other. They married at Christmastime in 1999 and moved to New Jersey, David’s home state, to start their family. Soon, they welcomed Sean. From birth, Sean and David were inseparable. “What didn’t we do together?” he said during an interview with Meredith Vieria for Dateline NBC, “I became ‘Mr. Mom.’ I would take him out for breakfast. Take him on the boat. We did everything – everything a father and son could do, and then some.”
But all of that changed on June 16, 2004. Sean was a beaming four year old, and Bruna and her parents, who had flown in from Brazil, tended him at the airport as they said their goodbyes. It was supposed to be a two week vacation in Brazil. David and Bruna said “I love you” and gave hugs and kisses, as families would before a trip. But when Bruna arrived in Brazil, she called David with devastating news: “Our marriage is over. Our love affair is over. I’ve decided to stay in Brazil.” She gave no reason. She wanted David to sign Sean’s custody to her immediately.
Over the next five years, his life crumbled hopelessly. Bruna obtained a temporary custody order for Sean in the Brazilian courts, and when Sean obtained an order from the United States demanding she return Sean within forty-eight hours, she ignored it. Then, she obtained a Brazilian divorce and an order for sole custody of Sean. She married a renowned family law attorney, Joao Paulo Lins E Silvia, in Brazil and with him and her parents began isolating Sean from David. He received death threats. They refused his visits. He lost appeal after appeal in the Brazilian courts. Then, he lost Bruna. She died just hours after giving birth to a baby girl and left Sean and the newborn to Lins E Silvia. He litigated Sean’s custody in Brazil full force, filing civil suits against David and demanding that he be named as Sean’s father on his birth certificate. He was slowly erasing David from Sean’s life.
The international custody battle entered the world stage when Dateline NBC began covering the story. David had spent hundreds of thousands of dollars for attorneys in Brazil and the United States. His friends started a website with an online petition to raise money for his case. As Dateline NBC reported, interest grew, and politicians watching the story got involved. At the forefront were New Jersey Congressman Chris Smith, then-Senator Barack Obama and now-Secretary of State Hillary Clinton, who called on Brazilian officials to honor their duties under an international treaty, the Convention on the Civil Aspects of International Child Abduction.
The battles in the Brazilian courts continued. Over five years, David won parenting time, only to have Lins E Silvia deny it or supervise it like a hawk, won custody, only to have the Brazilian courts stay his rights to retrieve Sean, and watched as the Brazilian family’s anti-Dad campaign took shape in Sean. From a happy little boy who eagerly hugged his father and cheered “Dada” four years ago, Sean had grown to an eight-year-old with a timid smile, unsure whether to utter “Dad” to this man he thought, misled, abandoned him. Media in the United States and Brazil covered the case in a frenzy.
At Christmastime in 2009, a Brazilian judge put the constant climb up and down the appeal ladder in Brazil to rest. According to the Hague Convention, Sean was to be returned to the United States immediately. The judge’s ruling, based on reports from three Brazilian psychologists, said Sean would suffer every day he remained in Brazil. David returned to Brazil immediately. After over a dozen flights to retrieve his son, this flight would be different. David and his attorneys waited in Brazil, cooped in a tiny hotel room, waiting for the judge’s ruling. It came mid-week, an order for the exchange to take place Thursday morning, Christmas Eve.
“It was a Christmas miracle,” David said. The exchange at the embassy, Sean’s grandmother dragging him past reporters and cameras, was more peaceful than anticipated. She asked if she could see Sean, and he agreed. “She’s still his grandmother,” he said. And he hugged her. And he had her tell Sean he was a good father. They landed in Orlando Christmas Eve afternoon, and they have been inseparable since.
At home in New Jersey a few days later, playing on the river, Sean called for David with, “Dad.” “I’ve been waiting for five years to hear that, those words again. And they’re precious words, from a precious little boy.”
Much has been reported about David and Sean Goldman’s case in the past week. The battle is far from over, as Sean’s Brazilian family has filed motions in the United States to have Sean returned to Brazil, to receive visitation, and to be compensated financially for, inter alia, court costs and defamation. We can expect the media frenzy not to fade anytime soon.
But what has not been widely reported is the law underlying the case, one of the Hague Convention treaties on children, and what the case means to you even if yours does not span overseas. Here now is an overview of the treaty and some practical lessons for your case.
What Is The Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is a treaty between countries that agree to cooperate and abide one set of laws, the Hague Convention, for the return of children removed from their home country for custody disputes. There are over sixty signatory countries. Notable among them are Australia, Brazil, China (parts), Germany, Israel, Italy, Mexico, Spain, Switzerland and Turkey. A complete list is available online at the National Center for Missing and Exploited Children’s website, wwww.missingkids.org. The United States became a signatory in 1981 and enacted the International Child Abduction Remedies Act (“ICARA”), 42 USC §§ 11601-11610 (1995), to implement it in the United States.
The Hague Convention seeks to simplify international cases, in which courts in different countries had been issuing conflicting orders, by reducing them to one issue: Where should the case take place? Signatories use the Hague Convention as procedural authority to determine whether children removed from one country should be returned, for the case to take place there, or should remain in their new country. The familiar “best interests of the child” standard has no bearing. The issue is not whether the new country is “best” for the child but whether the child has been removed from his domicile, or home country, in contravention of the Hague Convention.
In most cases, the left-behind parent with custodial rights files an action in the child’s new country for return of the child. (The Hague Convention does govern access cases, in which the parent merely seeks to enforce visitation rights, but those cases are not as publicized and will not be addressed in this article.) In some ways, the case proceeds just like a custody case: the left-behind parent files a petition or complaint; the moving-parent files an answer; the court may issue temporary custody orders; and the parties appear in court to argue their points, sometimes in an evidentiary hearing with witnesses, expert reports and other evidence. In many ways, however, the case is unique: the Hague Convention, in Article 16, specifically bans the court from obtaining jurisdiction to hear the underlying custody dispute; the left-behind parent must file the action within one year of removal (excluding times when the child was away with permission and, in some countries, times when the moving-parent secreted the child); the court cannot return the child if the child is age sixteen or older (even if the case began before age sixteen); and the court may refuse to order the return if the child has become well-settled in the new country, if the child is mature enough to object and does object to return, if the child faces a grave risk of physical or psychological harm if returned, if the left-behind parent acquiesced in the removal, or if the return violates the new country’s fundamental notions of public policy, even if the left-behind parent resides in the child’s home country. These are the moving-parent’s affirmative defenses, and each one the courts narrowly apply to avoid mixing, impermissibly, with the “best interests of the child” standard. Cases analyzing each affirmative defense are available on the NCMEC’s website.
If the left-behind parent proves, by a preponderance of the evidence, that (1) the child had a habitual residence in that parent’s country before removal, (2) the moving-parent breached the parent’s custody rights (which need not be joint physical custody) and (3) the parent was actually exercising the rights at the time of removal, and none of the affirmative defenses apply, the court must order the child returned to the home country. From there, the parents may litigate under the “best interests of the child” standard.
Readers interested in learning more about the Hague Convention may research online at the NCMEC’s website and at the United States Department of Justice’s website but should contact an attorney immediately for case-specific information because there is a one year filing deadline, among other procedural rules, that may apply.
What Does David Goldman’s Case Mean To You? Focus On Procedure.
It is easy in a fight for children to get distracted, dragged-down in a mudslinging battle of who’s-better, especially when your former loved ones now call you unfit, abusive, alcoholic, a no-good-something-or-other, a monster who does not deserve his children. They all wage their David Goldman battles, overseas or not. At least, that’s how it feels. It will take considerable restraint and willpower to turn the other cheek, but turn the other cheek you must, lest you remind your judge of an episode of Judge Joe Brown and lose focus on the first, most important issue in your case: procedural posture.
Procedural posture is the current stage in the case’s journey through the court system. Is the case on remand from an appellate court decision with specific instructions to retry an issue? Is the case in for an objection from one parent disappointed in a custody recommendation? Is the case back to court to modify a prior order and, if so, was the order a final order or a temporary one, and did it provide for joint custody or sole? These are not minor details for attorneys to recite in their opening remarks to the judge. They tell the judge what evidence is admissible at the hearing, what burden of proof, production and persuasion to apply, and who must carry the burdens, among other things. Neglect procedural posture, and you could spend your hour in court arguing point A only to find that point A was not even relevant!
For example, in Michigan, the Child Custody Act of 1970, MCL § 722.21 et seq., requires the family court to presume it is in the best interests of a child to have a strong relationship with both parents. However, the Act and its case law also require the court to assume a child should remain in an established custodial environment, absent strong proof to change it. Therefore, whether an established custodial environment exits is a preliminary factual question the court must answer before rendering a custody decision. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If it exists with one party, the other party must persuade the court by clear and convincing evidence that changing it is in the child’s best interests; otherwise, the preponderance of evidence burden applies. Moreover, to change it due to some change in circumstances, the court must only consider events that occurred after the date of the last custody order – waste time talking about what you did during your marriage, what your spouse was like as a parent then, what you envision a better custody order being, etc., in Michigan, and you will get an order summarily dismissing your case straightaway.
In David Goldman’s case, the procedural issue was whether Sean’s custody battle should take place in the United States, but his Brazilian relatives waged a who’s-better war. The family launched a media campaign in television, newspapers and magazines that revealed details about Sean’s life in Brazil, including his dreams of becoming a cook like his grandmother or a lawyer like his mother’s second husband. They claimed David was unfit to parent, neglectful, and even violent toward Sean’s mother. They claimed it was in Sean’s best interests to reside in Brazil. Presumably, they intended those arguments to support a well-settled or grave-risk defense under the Hague Convention. The problem was, they sounded in a “best interests of the child” analysis, which the court could not conduct and by the terms of Article 16 in the Hague Convention was without jurisdiction (power) to do.
For your case, you should have a frank discussion about procedural posture. Ask your attorney to describe your case’s procedural history. What stage are you in? Ask how the facts you intend to raise in court or with your opposing attorney fit. Ask whether it matters that the case is in for a modification to a divorce decree, or pending on appeal, or scheduled for an emergency hearing to issue a temporary order. (It does.) Look for citations in your attorney’s pleadings and briefs to statutes, court rules and case opinions that accurately identify your procedural stage and the laws applicable to it. If there are none, ask why and demand that they be included, if appropriate.
Make sure the arguments you voice are appropriate at your case’s procedural stage and for the laws applicable to it. If the only issue at your procedural stage is whether there has been a change in circumstances since your divorce decree, forget the arguments you wanted to make about what your ex-spouse did in 1995 just after the birth of your son, ten years before your divorce decree. If your issue is a question of law on appeal, do not waste time re-addressing and re-hashing factual questions that are much harder to overturn on appeal, receiving the ever-deferential abuse of discretion standard of review rather than the de novo or clear error standard of review. And if you do not have an attorney, you are responsible for doing all of these things. Your judge will not do them for you. Do your research, and plenty of it.
To help you prepare, with or without an attorney, take a notepad and draw two timelines, one at the top and one at the bottom. On the top timeline, chart your case’s history, from the date of filing to the date of your last order (including appellate orders). On the bottom timeline, chart all of the facts you intend to prove and arguments you intend to make at your next hearing. Draw a vertical line from the most recent entry on the bottom timeline to the most recent procedural stage on the top timeline. Then, ask yourself, Did all of these things I want to address happen in the past? If so, do they matter now? If you already have a final order and your case is not on appeal for factual questions, they might not. Find a statute, a court rule or a case opinion that tells the court you can argue them now.
What Should You Do If You Suspect International Child Abduction?
If you suspect your child has been abducted, contact the police immediately. Make a report, and exhaust all avenues in your jurisdiction to locate your child. Also contact NCMEC. NCMEC works with the Department of Justice and the Department of State to manage international child abduction cases. The NCMEC’s Central Authority department will accept your report and assign a caseworker to help you complete a set of documents called a Hague Convention Application. The Central Authority will also add your child to the national list of missing children and begin the process of locating the child in the United States, if possible, through school, employment, financial, social security, police, medical and other public records. If unsuccessful, the Central Authority will locate an attorney licensed to practice in the country where your child is believed to be, who will litigate the case on your behalf. If you do not exceed certain household income levels, you may qualify for no- or low-cost services. You should contact an attorney immediately for assistance, as there are time limits as short as one year that may apply.
Family members go to court everyday to fight for children without a reporter or film crew, politician or protester in sight. Their cases may not span overseas. They may not feature young, successful models, globe-trotting relatives and attorneys worth hundreds of thousands fighting it out on the world stage and in the press. But for them, the sense of urgency, of fight-to-the-death-cuz-my-kids-are-on-the-line is just as real as David Goldman’s battle in Brazil. And just as real to both is the key to effective advocacy: knowing how procedural posture affects your case.
