UPDATES IN MICHIGAN FAMILY LAW

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.

Several new reports about David & Sean Goldman

June 16th ruling on reunification:  This Order by Judge Pinto placed Sean in the custody of his father from 9 AM Monday until 8 PM Saturday - in Brazil for a "transitional period." Judge Pinto, finding signs of parental alienation syndrome that "there is no doubt that the minor needs to have contact with his father as soon as possible." Sean is to spend 9: PM Saturday on Saturday until 9 AM on Monday with the stepfather. This arrangement will continue until all pending appeals are decided. You may read the Order here.

According to the Latin American Herald Tribune, the  Brazil federal court in Rio de Janeiro has authorized Sean's father, David Goldman, to live in Brazil with Sean while it reaches a definitive  verdict in the custody battle with the boy’s Brazilian stepfather. This decision in favor of David Goldman holds that pending a final verdict in the case, nine-year-old Sean, will stay 6 days a week with his father and 1 day per week with his stepfather. Sean was abducted to Brazil by his mother in 2004. She died in child-birth last fall and Sean has lived with his step-father since then. 

Meanwhile, read more details in The Moderate Voice about this startling development in the tragic battle by an American father to regain custody of his son who was kidnapped to Brazil five years ago.  That report says that while the order for reunification of Sean with his father pending final resolution is commendable, it seems ridiculous that David Goldman can only “have custody” of his son for six days a week, from Monday 9 AM until Saturday 8 PM, and…in Brazil.

Hague Convention Article 13(2) | Objections of child to return

ABC News reports today on the Sean Goldman case. Sean is 9 1/2 years old. A transcript was released by the Brazilian family's lawyers on Wednesday. In the transcript, Sean Goldman tells a psychologist that if he is sent back to New Jersey to be with his father David Goldman he will "break down totally." At several points in the interview he says, "I want to stay here in Brazil." You may read a translated version of the interview here.

How might Sean's objections impact the case?

Initially, I thought that these objections were a last-minute effort to fit this case into Article 13(2) of the Hague Convention. Article 13(2) allows a court to take into consideration the objections of the child to a return to the left-behind parent. Typically, it is the maturity of the child, the reasonableness of the child's objections, and whether the child's objections appear to be coerced or influenced that sway the deciding court.

However, after reading the lengthy translation of the ruling from Judge Pinto in Brazil, I see that a psychological evaluation was ordered by the court and that Sean's step-father has raised every possible defense against return. I urge you to read the lengthy ruling, which shows how hard David Goldman's attorneys have worked to bring Sean home. [Patricia Apy in New Jersey is Goldman's American lawyer and he has another lawyer in Brazil as well.] The ruling also makes clear the perfidy of the Brazilian stepfather and the lengths to which he has gone to prevent the return of this child. Every possible defense has been raised under the Convention. Each exception is stretched to absurd lengths. You can read the June 1st ruling on http://bringseanhome.org.

The Sean Goldman case takes a turn for the worse

A June 17, 2009 Op-ed piece in the Wall Street Journal accuses Brazil of helping to kidnap American children. Former assistant secretary of state for Inter-American Affairs (1989-93) Bernard Aronson wrote in “Brazil helps kidnap American children”: “In the coming weeks, Brazil will define itself to the United States and to the wider international community by how it treats a 9-year-old boy.”

On September 24, 2008, I blogged about Sean Goldman, who was born and raised in Red Bank, N.J. Sean’s father, David Goldman, is an American father. His former wife was born in Brazil. Almost five years ago to the date, Sean’s mother flew to Brazil with him. She said it was a two-week vacation. Once there, however, she divorced David Goldman and re-married. Her new husband belongs to a powerful family of prominent Brazilian lawyers. Sean’s mother died tragically in childbirth one year ago, and her Brazilian family has used its powerful connections to prevent Sean's return to his biological father.

Preventing parental kidnapping

On the ABA Listserv, we've been discussing ways to build orders that help prevent  parental abductions.  This is very important when there is a possibility of abduction to a  foreign country, especially one that is non-compliant or has demonstrated patterns of non-compliance with the Hague Convention. Of the signatories to the Hague Convention, Honduras is identified as non-compliant in the April 2008 Report of the Department of State Office of Children's Issues Document: "Report on Compliance with Hague Convention on the Civil Aspects of International Parental Abduction Convention." The report identifies the following countries as "demonstrating patterns of non-compliance":  Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela.

Crockeller "Guilty" in parental kidnapping says Boston jury

The Boston Globe posted breaking news today - the guilty verdict of the jury in the Clark Rockefeller kidnapping case. The Globe reports that the jury rejected Crockefeller's insanity defense and found him guilty of kidnapping his 7-year-old daughter Reigh Boss last year. Court TV followed the trial. Evidence at trial deconstructed 30 years of the defendant's chronic exaggerations and outright falsehoods about his identity, his activities, dubious stories and exposed his use of multiple aliases.

Crockefeller's lawyers and highly paid experts claimed that he suffered from Narcissistic Personality Disorder ("NPD")and that he was legally insane at the time of the crime. The DA argued that Crockefeller was really a manipulative con man who meticulously planned a crime, hiding $800,000 in gold coins, buying a new residence using another false identity where he could hide Reigh. It took eight days for law enforcement to find him and Reigh. He's been in jail ever since.

Insanity defense in "Clark Rockefeller" kidnapping case?

The Boston Globe reports on February 11, 2009 that negotiations for a plea bargain in a parental kidnapping case that captured national attention have collapsed. Christian Karl Gerhartsreiter, AKA Clark Rockefeller, is a German national who allegedly used many aliases during his thirty years in the US. He insinuated himself in high society from Los Angeles to Manhattan to Beacon Hill by claiming a lineage that increased his social status.

Gerhartsreiter is charged with parental kidnapping, giving a false name to a police officer, and two assaults. He is accused of kidnapping his daughter, Reigh Storrow Mills Boss, from a Back Bay street during a supervised visit on July 27. Earlier articles about the Rockefeller kidnapping may be found on this Blog may be found here.

What are the risks of parental kidnapping & how can you prevent it?

 Given Michigan’s disastrous economy, families are increasingly mobile. The prospects of a parent removing children from Michigan in violation of a court order or in the absence of a court order have increased as a result. Parental kidnapping is a felony punishable by 1 year and 1 day in prison. However, because of the potential harm to children, it is important to focus on prevention.

On June 14, 2007, legislation was initiated in Michigan that would help parents seek court intervention to prevent parental kidnappings. House Bill No. 4925  [Last accessed on November 22, 2008]. The Model Act is called the Uniform Child Abduction Prevention Act. Unfortunately, that legislation has languished in Committee ever since.

Family law experts around the country have actively supported this uniform law. The question for Michigan parents and family lawyers is this: How can this Model Act help prevent and/or resolve parental abductions?

Hague Convention | Does it work for the left-behind parent?

On Wednesday September 24, David Goldman appeared on The TODAY Show to talk with Meredith Viera about his four-year-long battle to bring his son home from Brazil. It was a moving interview.

Four years ago, Goldman's wife flew to Brazil with their son Sean Goldman to visit her parents. When she arrived at the airport, she called David and told him that their marriage was over and that if he ever wanted to see Sean again, he would have to sign custody over to her. Of course, he refused to do so.

Amber Alerts | When are they used?

Recently law enforcement in the state of Massachusetts issued an Amber Alert after "Clark Rockefeller" (or whoever he is) kidnapped his daughter, Reigh Boss, from a public street in Boston. Shortly after the abduction, Rockefeller was seen with the child in New York. New York refused to issue an Amber Alert. The question raised is: "When is it appropriate to issue an Amber Alert?"

Parental kidnapping | Law enforcement response

Friday's Boston Globe's Update on local news made clear the intense law enforcement response to the parental kidnapping of Reigh Boss by her father "Clark Rockefeller" alias "Christian Chichester" alias Christian Karl Gerhartsreiter. See this earlier post about the child's kidnapping, with a discussion of risk factors that can alert parents to a danger of parental abduction.

Recall that in a recent post I said that Amber Alerts are rarely approved in parental kidnapping cases because the prevailing thought is that if the child is with a parent, the child is probably safe. However, on Friday law enforcement made clear that it was the ambiguity / uncertainty of the true identity of "Clark Rockefeller" that kept the FBI and other resources working 24/7 to help establish the man's identity and develop leads that resulted in recovery of the child.

Reigh Boss kidnapping | Child recovered unharmed

Thanks to this case's high profile, extensive media coverage, and thousands of tips from concerned citizens, FBI agents were successful in staging a recovery operation that involved separating Clark Rockefeller from his daughter, 7-year-old Reigh Boss, arresting Rockefeller and recovering the child. The recovery was in Baltimore, Maryland where Rockefeller had leased a small carriage house. The child was unharmed and her mother was quickly on her way to get her.

Parental kidnapping | Risk factors Part 2

On July 29, 2008, I wrote about the risk factors that predispose  parents to kidnap their children. See Parental kidnapping | Risk Factors.

Today, the New York Daily News reported that, in fact, Clark Rockefeller had talked last Christmas to friends about kidnapping his daughter Reigh. According to this report, Rockefeller was "so crushed when his ex-wife moved overseas with his beloved 7-year-old daughter that he told pals last Christmas, 'I may have to kidnap her.' "

Parental kidnapping | Risk factors

There must be something in the water. I've successfully assisted 6 parents whose children have been kidnapped in the past 12 months, with most children being in protective custody within a matter of hours. Yesterday I fielded two inquiries about parental kidnappings. Today, the Boston Globe described an unusual parental kidnapping involving a child who, after a bitter divorce, resides in  London with her mother. Reigh Storrow Boss was kidnapped by her father, Clark Rockefeller during the first of scheduled supervised visitations in Boston. He had not seen her since last December. Parental kidnappings are a risk where, as in Rockefeller's divorce case, one parent has been deprived of custody by a court and has been deprived of visitation for long periods of time.

Sixth Circuit refines standards in Hague Convention cases

In Robert v Tesson, ___ F3d ___ (2007), the Sixth Circuit Court of Appeals decided a case on November 14, 2007 that refined the legal standard to be applied in determining a child’s “habitual residence” under the Hague Convention. The Sixth Circuit court heard oral argument in this case in October 2007 and rendered its 15-page decision about three weeks later, in response to a letter received from the United States Department of State, Office of Children’s Affairs that emphasized the Hague Convention’s command that Hague Convention matters be resolved “expeditiously.”

The Robert Court held as follows:

Finding your child after a parental kidnapping

There must be something in the water. I handled two parental kidnapping cases in March. This makes five cases for me in the past year. In all of these cases the children were successfully located and returned to the custodial parents within 24 to 48 hours. Other parents express fear that their child may, too, be at risk.

Prevention of parental kidnapping is not always fool-proof. About 800,000 children were abducted in 2003 alone, the last year for which statistics are available. Fewer than 1% of these abductions were  by strangers. So parents want to know: What can I do to make sure that I can find my child or children if the non-custodial parent takes off with them?

Passports | Parental Kidnapping - Prevention & Recovery

A parent expressed concerns yesterday about issuance of a passport to a child. The parent's fear was that the child might be taken out of the country and not returned. Certainly, the Hague Convention, can be of assistance in recovering children. However, this is an expensive, time-consuming, and not always successful process, particularly if a child is taken to a country that is not a Hague Convention signatory.

As a practical matter, Homeland Security is now requiring that any child have his/her own passport -- even for travel to Canada or Mexico.  In a high conflict case involving one or more foreign-born parents, where there is a potential flight risk, there are certain protective measures that will help to prevent a parental abduction.

Parental Kidnapping | Prevention and Response

Family abductions bring into play civil and criminal laws at state, national and international levels. There are several types of parental abduction. Sometimes, a parent may flee with a child temporarily, hoping to gain an advantage in a custody dispute to parents or hoping to find more favorable laws in another state.  [Some states, for example, have mandatory joint custody laws.] Other times, a parent who has lost a child custody battle in one state may cross state or international lines, hoping to find a friendlier court that will modify the custody order. Other times, a parent takes a child intending to permanently deprive the other parent of parental rights. 

Family Abductions: Hague Convention cases

Sometimes a non-custodial parent abducts a child and takes the child to another country, refusing return to the custodial parent. Many countries are signatories to The Hague Convention, an international compact that helps custodial parents recover children who are abducted and held in foreign countries. A valuable resource, a practitioner's guide   to litigating Hague Convention cases,  has been created and is made available to the public and to practicing attorneys by the International Missing Children’s Division of the National Center for Missing & Exploited Children. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts.

The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child. Other valuable Hague Convention resources are available online at  www.missingkids.com.

Thanks to Diana Skaggs of Divorce Law Journal for bringing this to our attention.

Technorati tags:

parental kidnapping, parental abduction,

Parental Kidnapping: How the left-behind parent can recover the child

Several lawyers asked today about what was the most expedient way to handle getting a move-away parent to bring a child back to Michigan to the "left-behind" parent. Michigan, like most States, has enacted the Uniform Child Custody Jurisdiction and Enforcement Act. [UCCJEA]. This uniform law says that initial child custody determinations should be made by the child's "Home State," if there is one.

‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding. * * *  A period of temporary absence of a parent or person acting as a parent is included as part of the period.” MCL 722.1102(g)

Parental Kidnapping: Useful Resources for the Left-Behind Parent

There are many good sources of information available on the Internet to help custodial parents deal with abduction of children by the non-custodial parent. In Michigan, the parental kidnapping statute states that if a parent keeps the child from the other parent more than 24 hours after the child was supposed to be returned, then that is parental kidnapping, which is a felony bearing up to 1 year and a day sentence in prison.

See the following resources that will help families and their lawyers understand the laws and resources available to them:

When Your Child is Missing: A Family Survival Guide: Published by the Office of Juvenile Justice and Delinquency Prevention, this guide was written by parents and family members who have experienced the disappearance of a child. It contains their combined advice concerning what you can expect when your child is missing, what you can do, and where you can go for help. It explains the role that various agencies and organizations play in the search for your missing child and discusses some of the important issues that you and your family need to consider.   

The statute does not require that a parent be formally served with a custody order before that parent can be charged with parental kidnapping. People v McBride, 204 Mich App 678, (1994). It only requires that a valid court order giving the party from whom custody or parenting time is in existence when the child is taken. In People v Reynolds, 171 Mich App 349, (1988), there was no custody or parenting time order with regard to the child, so the father could not be charged under the statute for taking the child from the maternal grandfather, who was baby-sitting. The father could, however, be charged for taking the child from the baby-sitter, who had lawful charge of the child at the time of the taking. Download Michigan_v_Reynolds

Today, Reynolds would be decided differently because Mr. Reynolds had no right of custody under a court order and the acknowledgment of parentage grants initial custody to the mother until the father takes formal action to obtain rights under a court order.

See Michigan's parental kidnapping statute here:  Download MCL-750-350a (Valid until April 1, 2013) Note that the law has been amended, effective April 1, 2013 to provide for a deferred sentence.  Download MCL-750-350a-amended-Eff. April 1, 2013  Also note that it is a complete defense under this section if a parent proves that his or her actions were taken for the purpose of protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.

You'll find many other valuable resources on my website http://parental-kidnapping.com. If your child is missing, please contact me to see if I can assist you or your attorney in recovery. I've consulted in many interstate parental kidnappings -- 7 in the past 12 months alone -- and can walk your attorney through the process even if Michigan is not one of the states involved. You can email me jeannemhannah@charter.net or call me at 231-223-7864 or 231-649-2140.

Resources for International Parental Kidnapping

If your child is kidnapped, your efforts to recover the child should involve planning and response by a wide variety of people in a team effort. This team usually comprises members of many different agencies. The primary organizations or professionals needed in the recovery and reunification of missing children with their parent or parents will include law enforcement (including, in some cases, the FBI), family and dependency court personnel, child protective agencies, other social agencies, including mental health professionals, and victim-witness advocates.

Recovery and Reunification of Missing Children: A Team Approach is a helpful book published by the National Center for Missing & Exploited Children and Missing and Exploited Children Comprehensive Action Program. It is available online without charge.

Parental kidnapping of a child is abducted leaves the parent who has been left behind faces seemingly overwhelming problems. These abductions leave parents feeling helpless, and create emotional, legal, and financial difficulties more difficult than a parent will ever encounter again. This is particularly true for parents whose children are taken to or retained in foreign countries.

International abductions pose particularly difficult problems; thus, a swift and informed response is often difficult. Parents face difficulties when the language of the foreign country is unfamiliar. Worse, the laws can be vastly different from the laws in the United States. Great distances and an inability to communicate with the child or children can cause enormous psychological problems and can frustrate recovery efforts. This is particularly true if the country is not a signator to the Hague Convention.

Despite the obstacles presented by international abductions, however, it is critical that parents whose child or children are victims of international parental kidnapping remain hopeful and optimistic. Although the situation presents potentially dire consequences, it may not be irrevocable. Organizing an effective recovery program can best be accomplished when left-behind family members respond to the kidnapping in a hopeful, informed, and steadfast manner.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP), under the auspices of the Department of Justice, has developed a guidebook as a resource for families of children who have been abducted to a foreign country.

The parents of abducted children can use this guidebook as a valuable
resource. It offers explanations and realistic evaluations of civil and criminal remedies available to the left-behind parent. It also explains applicable laws, identifies public and private resources available to help, and describes strategies to help left-behind parents reestablish meaningful contact with them in another country and/or recover their children.

A Family Resource Guide on International Parental Kidnapping is available without charge on the Internet.
http://www.ncjrs.org/pdffiles1/ojjdp/190448.pdf

To contact Jeanne Hannah with your questions or to view her Family Law website, click here. For resources and information see Jeanne Hannah's parental abduction website www.parent-kidnapping.com

Technorati tags: parental kidnapping, abduction, family abduction