Son Abducted to Brazil, U.S. Dad's Hague Convention Application Languishes

MSNBC reports today on an American father's frustrating ordeal.  

David Goldman's now-deceased wife abducted their son, Sean, to Brazil in June 2004 on the pretext of a two-week vacation. Upon arriving in Rio de Janeiro, she told Mr. Goldman their marital  relationship was over and unilaterally declared that she intended to maintain sole custody of their child.

Within 50 business days, Mr. Goldman filed an Application pursuant to the Hague Convention on International Child Abduction for the return of his son.

Prior to her death this year, the mother remarried.  Her new husband, a prominent and connected Brazilian lawyer, continues to thwart Mr. Goldman's efforts to return his son to the U.S.

The outcome - a judicially-sanctioned impasse that continues to separate father and son, and a high-profile controversy that has led to diplomatic intervention by U. S. Secretary of State Hillary Clinton:

In 2004, Goldman filed a petition under the Hague convention to have his son returned. Hague convention cases are supposed to be a "very expeditious process" and not last longer than six weeks, said James D. Garbolino, an assigned Superior Court judge in California who has written a book on such cases. 

Among the common defenses for not returning a child, Garbolino said, are that a child would suffer grave psychological harm by going back to his or her home country, or if the parent waits more than a year after the child's departure to file a petition. Goldman filed within 50 business days of his son's departure, according to his attorneys, but Bianchi's side argued that Sean would be emotionally damaged if he returned to the United States.

A federal judge in Rio in 2005 agreed that Sean had been moved to Brazil wrongfully but ruled that he should stay in Brazil because he had become "settled" in his new home, which is an exception described in the treaty.

These comments by one of the second husband's lawyers -  he has engaged a team of seventy lawyers on the case -  speak volumes:

"Sean is a naturalized Brazilian citizen. He has lived here for almost five years and has been raised with much love, affection and care by a serious family, receiving the best education possible," he wrote, adding, "It's not fair, nor humane, this slaughter that we are suffering involving the calculated capriciousness of an absent father."

See: Custody battle colors U.S., Brazil relationship

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Ontario Superior Court Judge Assumes Jurisdiction Over Two Children, Habitually Resident in Saudi Arabia

In an unusual decision released October 5, 2007, the Ontario Superior Court of Justice relied on its parens patriae power to assume jurisdiction over two children who habitually resided with their father in Saudi Arabia at the time of the hearing.

In Johnson v. Athimootil, Ontario Superior Court Judge Alison Harvison Young court concluded that while the Ontario court does not have statutory jurisdiction over the children under the Children’s Law Reform Act, it was an appropriate case, nonethless, to assume jurisdiction over their custody on the basis of the Court's parens patriae jurisdiction.

Parens patriae jurisdiction refers to the inherent, overriding power of the Court to intervene to protect the best interests of children, where legislation does not fully provide for or anticipate children's needs in a specific circumstance.

In this case, the family had moved from Kuwait to Toronto. They resided in Canada for five years and became Canadian citizens. In September 2006, they moved to Saudi Arabia for the father’s employment. In early 2007, while the family was visiting India from Saudi Arabia, the father and the two oldest children returned to Saudi Arabia. The mother and youngest child returned to Canada. A provincial court ordered interim custody of the youngest child to the mother, who now sought custody of the two older children.

The Court found that Sections 22 and 23 of the CLRA did not apply to give the court statutory jurisdiction over the children who resided in Saudi Arabia:

• the children were habitually resident in Saudi Arabia;


• they were not present in Ontario when the application was started;


• they had not been abducted;


• there was no risk of serious harm to them.

However, neither party submitted evidence of their immigration status in Saudi Arabia, and there was no evidence before the court as to whether the parents would have standing to bring a custody application there. It was also not clear that the father would commence proceedings in Saudi Arabia.

The court held that if the Ontario court denied jurisdiction, there might be no court that could or would assume jurisdiction. This was a gap in the legislation not contemplated by the drafters, the court held.

The court granted the mother interim sole custody of the two older children and ordered the father to return them to the mother.

Note that the Kingdom of Saudi Arabia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

It seems clear that had the Hague Convention applied, the Ontario court would have been required by the Convention to decline jurisdiction over the custody of the two children habitually residing elsewhere.

- Shashi Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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