June 2009 Update on David and Sean Goldman

The Today Show - June 25, 2009

David Goldman who has been trying to recover his son from Brazil for over five years, appeared with his lawyer Patricia Apy on the Today Show today with Meredith Viera. It was a powerful interview and a fitting exclusive rebuttal of the highly objectionable CBS Morning Show interview with Sean's stepfather and maternal grandmother earlier this week. You'll find this interview below.

Happily, Viera is willing to do her homework, unlike the coverage earlier this week on CBS' The Morning Show. It was obvious that no one at CBS has a clue about the real issues here. Must be that sensationalizing a story means more to CBS than getting a hard news story right.

June 1, 2009 decision: Brazilian Judge Rafael Pinto ruled that Sean should be returned to the U.S. immediately

A firm opinion was issued by Judge Rafael Pinto on June 1st in Rio de Janeiro stating that Sean has  been the victim of parental alienation and that he should be placed in the custody of his father immediately to avoid more harm to Sean. The transition was to take place in the United States. Unfortunately, Joao Paulo Lins e Silva appealed almost immediately, and a stay was granted.

On June 8th, Judge Pinto decided that since Sean wasn't cleared to leave Brazil, it was appropriate to have the reunification of father and son take place in Brazil. Given the fact that Joao Paulo Lins e Silva, Sean's stepfather has gone to great lengths to interfere with and/or simply prevent (in violation of a court order) positive parenting time between David and Sean, reunification in Brazil is less than ideal, as David and Patricia Apy told Viera.

Summary of Judge Rafael Pinto's June 1, 2009 decision that Sean should be returned immediately, stayed because of an appeal

Judge Pinto's June 1st opinion exposes the outrageous claims of Joao Paulo Lins e Silva. Lins e Silva filed papers with the Court after Sean's mother died, without disclosing her death. There is speculation that he was merely hoping for a decision in favor of Sean's mother and hoping he might succeed as far as her claim to custody.

Lins e Silva has advanced all kinds of legal theories for why he should prevail and be given the status of "socio-affective paternity" [this is something like our legal fiction of the "psychological parent"].  Judge Rafael Pinto wasn't kind in dismissing Lins e Silva's claims, calling some of them ludicrous.

Res Judicata

Lins e Silva claimed that Sean's mother had prevailed in the court and that the decision was res judicata [for non-lawyers: roughly translated that means already decided and not to be disturbed on appeal or relitigated.]  Essentially, Judge Pinto said that Bruna (Sean's mother) had wrongfully detained Sean (kidnapped him). She wasn't required to return him because the Hague Convention has a convenient defense: "The child is adapted to his new environment." But the doctrine of res judicata would not apply. For that doctrine to be effective, the court must have the same parties before it. Lins e Silva cannot step into the shoes of Bruna. This legal theory was completely baseless.

Lins e Silva claimed that David Goldman's renewed request for the return of Sean under the Hague Convention was too late because it wasn't filed within one year following Sean's mother's kidnapping of Sean. Judge Pinto was careful to distinguish Bruna Goldman's kidnapping from Lins e Silva's now wrongful detention of Sean Goldman following Bruna's tragic death. According to Judge Pinto, this is a second kidnapping.

As Judge Pinto makes clear in his June 8th decision, the Brazilian Civil Code at Articles 76 and 1631 establish as a matter of law a parental preference in favor of David Goldman. These clearly state:

Art. 76.  [concerns domicile of minors] Have necessary domicile the incapable [unemancipated minor] The domicile of [the minor] is that of his representative or assistant [i.e., says Pinto, his parent.]

Art. 1631.  During marriage and a stable union, the familial standing belongs to the parents, in the absence or impediment of one of them, the other will pursue it with exclusivity.

Adapted to new environment

Judge Pinto said that, in fact, there was now a second abduction (the second by the step-father who had no legal right to keep Sean after Bruna died). Lins e Silva will not be allowed to use the defense that Sean is "adapted to Brazil" and he cannot claim that Sean's "habitual residence" was Brazil at the time of the second abduction (wrongful detention). Upon the death of his mother, the right to custody of Sean as a matter of law -- Brazilian law, no less -- passed to his biological surviving parent, David Goldman. Since Goldman filed his second petition for return under the Hague Convention only 35 days after Bruna's death, the defense of adaptation to the new environment won't be accepted. To quote Judge Pinto:

"In other words, and thinking in theory, it is not reasonable - indeed, it reaches the level of surrealism - to admit that a given person, devoid of familial power upon the minor - a third party -, objects to the delivery of the child to the father or the mother, or both, under the basis that the child is integrated into their new environment.

"To admit this possibility means to open dangerous gaps capable of constituting real absurdities. And the absurd, as is well known, cannot find refuge in the Judiciary."
[My emphasis]

Judge Pinto then gave an example . . . theater of the absurd . . . stranger kidnaps child, raises child as his own, gets married, now the child has a "father" and a "mother" . . . and later "siblings." Can anyone reasonably believe that the law would reward the kidnapper by refusing to return the child to his lawful parents (who have tracked him down) on the claim that the child is "adapted to Brazil?"

"Of course not!" (His exclamation mark)

Explaining the difficulty in reunification, Judge Pinto discusses how Lins e Silva thwarted the court-ordered visitation by not being present when in October 2008 he was to allow David Goldman to see Sean and how later Lins e Silva placed restrictions on the visitation that were not in the court's order (confinement to the grounds, a supervisor within feet of David and Sean, for example).

Risk of harm to physical or mental health

Lins e Silva, himself a Hague Convention lawyer by the way, didn't miss a trick. He tried to use every defense available under the Convention to avoid Sean's return. So he claimed it would be emotionally damaging to Sean to be separated from him, from his sister Chiara and from the maternal grandparents. The judge gave short shrift to that argument as well. Judge Pinto said that the Hague Convention does permit exceptions to return of the child if there is a risk of mental or physical harm. Judge Pinto relied upon the interpretation given by Prof. Eliza Perez-Vera who cautioned that Article 13.1(b) of the Convention must be interpreted narrowed to avoid rendering the Convention meaningless. Courts should only refuse to return children where there is a risk of "serious harm," such as return to an abusive parent or parents or to a country which is in upheaval and, therefore, dangerous for its inhabitants.

Opposition of the child to return

There has been a lot of brouhaha lately about the video showing Sean saying that he wants to stay in Brazil. Sean, of course, is 9 years old, hardly old enough to make this kind of life choice for himself. But what is truly disgusting was discussed by the judge at length, again backing up the diagnosis of parental alienation practiced by Lins e Silva and the maternal grandparents.

"The Defendant (Lins e Silva) struggles hard on this point.

"It is sustained, incessantly, that the child should here remain because that would be his will.

"It lacks reasoning again."

At length, the judge describes a session with three psychologists.

"When asked if he had any opinion about it [going to the U.S. to live with his father], Sean answered that for him 'TANTO FAZ' [loosely translated "It doesn't matter/whatever"]. Please note that Sean, while using these terms, leaned back in the chair, with his body relaxed, as a sign of tranquility. Vera [the female psychologist Sean has been seeing regularly hired by Lins e Silva] in turn, questioning in a surprised tone, repeats: "tanto faz!?" and the child supplements that he would rather stay here, but it is the 'juiz que manda' ["It's the judge who orders/the judge decides"] After that, Sean started to direct his sights at Vera along the conversation, as if searching for approval."

Judge Pinto discusses that only when confronted with the disapproval of Dr. Vera Lemgruber did Sean repeat that he wants to stay in Brazil. Judge Pinto said that it would be convenient for the court to leave the decision to Sean, but that doing so would be irresponsible and cowardly.

Abandonment

Still fighting, Lins e Silva then claims that David abandoned Sean. Not so, said the judge. David has been fighting for Sean since the very beginning, over five years ago.

Best Interests of the Child

As for Lins e Silva's next argument . . . that Sean has constitutional rights and should not be returned because it is in his best interests to remain in Brazil [much garbage about how David Goldman cannot provide as good a life as the wealthy grandparents and the wealthy stepfather] Judge Silva begins to get really irritated:

"From the reason of the reasons described above, it can be seen, at once that for the Defendant, it matters little that, from that myopic interpretation of relevant constitutional principles, one could subtract from the minor, as inalienable right inherent to his personal statute, that is the right to live with the only father that is left to him.

"It is inconceivable, data maxima venia [loosely "a grossly corrupt idea"], that the principle of best interest of the child - often cited by the defense - be interpreted as intended there; in other words that the best solution for Sean is to "condemn him," after the irretrievable lost of his mother, to now also love, forever, the father he still has, turning him into, almost, an orphan of mother and father!

* * *

"Moreover, contrary to what the defendant claims, denying the right of Sean to live and be raised by his father - his only living parent! - that would be a flagrant violation of the principle of human dignity.

"After all, the right to live with, and be raised by, one's father is a fundamental element of human dignity!

"That is the reality."

Discussing the parental alienation that is on-going at this very moment, Judge Pinto says:

"It concludes that the possible outliving of effective psychological damage to that child is far from being related to the child's return to the United States, but is derived, in fact, from his stay here in Brazil, in case the boy remains under the possession and custody of the Defendant, and therefore, the other maternal relative.

"The parental alienation imposed on Sean, in short, tends to deteriorate further, to a stage in which the child does not even recognize, in the figure of Mr. David Goldman, that of his father, which is thoroughly detrimental to the child. Ergo, it is necessary to determine, immediately, the cessation of this process, something that will, only then, comply with the principle of the best interest of the child."

There is more. You may read the opinion of Judge Pinto, issued on June 1, 2009 here. Unfortunately,  yet another appeal was filed, thus the immediate return to the U.S. that was ordered on June 1st has been stayed. Unless the United States can put sufficient pressure on Brazil to give an expeditious ruling in the appellate court, this could drag on even longer.

Because of the stay on appeal, Judge Pinto issued another order on June 16, 2009 that David Goldman may have custody of Sean from 9 AM on Monday until 8 PM on Saturday, again stating the parental preference in favor of the surviving parent. This custody must be exercised in Brazil. Below is the interview today with Meredith Viera on The Today Show, in which David and his American lawyer, Patricia Apy discuss this court order.

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Comments

[lucas law center]

Sometimes I wish there was no divorce anymore because it was so hard when you have a broken family and they don't happy with what happen. And they question why did they have a family like that and do they really deserve this?

LLCT