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 AP reported that lawyers in the U.S. and Brazil are preparing to respond to the latest court order in this international custody case, an order giving a 9-year-old boy's American father some custody rights. A lawyer for the boy's Brazilian stepfather said he plans to appeal a ruling this week that stipulates that when the boy's father is in Brazil, his son must remain with him six days a week until a federal court there sorts out the broader custody issue.
David Goldman as of last Thursday, was still at his home in New Jersey. U.S. Rep. Chris Smith, a New Jersey Republican who has traveled with Goldman to Brazil several times, said there's a concern that having Goldman have custody but remain in Brazil might be unhealthy. Goldman's attorney, Patricia Apy is also concerned that an appeal could scuttle the arrangement. And Goldman's supporters are objecting to the video of Sean expressing his views, saying that the video itself "abusive."
"It reminded me of a hostage situation where you get somebody and you ask them questions in front of the camera," Smith said. "There's no doubt that he was coached."
AP quoted Patricia Apy as saying that she believes the Brazilian family is trying to take advantage of a provision in the Hague Convention that can give children a say in whether they should be returned to another country. But she said it does not apply in this case because of Sean's young age and psychological fragility. She objects to the extreme psychological pressure it places on SEan.
The lawyer for the Brazilian step-father, though, said Apy is misinterpreting the law. He claims that there is age limitation for a child to be heard, and, in fact, the provision says that if a child is able to express himself — even if he is only five years old, he should be heard and his opinion should be taken into consideration by the judge. This, based upon my research, is a huge misinterpretation of the law.
I've reviewed many cases from various countries on this issue. Usually, the older the child is, the more willing the court is to consider his or her objections. I've read few cases where a child younger than 12 or 14 was allowed to object successfully.
Here's a good example of one of these cases: The children aged 9 1/2 and 10 1/2 had been interviewed, individually to begin with by a Court official (the country was Switzerland) in the presence of a child psychologist. Both children had expressed the wish not to return to Spain. In that case, the Court added that it should be decided whether the wish expressed by the children had been influenced by the abductor. The Court held the view that a child is of sufficient maturity if he or she understands the principal elements of the situation and the respective interests of the persons concerned and is also able to appreciate them and, on that basis, to form his or her own opinion. The authorities must also be convinced that a child who expresses his or her objection to return is able to overcome his or her manner of settling the conflict of loyalties in the relationship with the parents. Recognizing that there is no real fully independent wish, the Court found that distinction should be made between manipulated wish and real wish of the child, which, although obviously not totally independent, must be considered.
The Court recalled that there was no absolute minimum age limit. It had been felt for some time in Switzerland that a 14-year old child was of sufficient age and maturity for his objection to be considered, but this age limit had been contested and over the last few years case law had shown that 10-year old children had also been found to have sufficient maturity in accordance with Article 13(2). The Court noted however, that clearly the more a child approached 16-years of age, the more chance there was that he or she would not be influenced by a parent. The Court noted that when they were heard by the President of the District Court, the children were aged 9 1/2 and 10 1/2. Their young age did imply a high risk of influence, said the court.
Insisting on the idea that the issue of the return of a child is independent from the issue of custody, the Court found from the minutes of the hearing of the children that they wished to remain with their mother and not to return to Spain with their father. One of the children had indicated that he would probably be on his own again or with neighbors because the father returned home late from work. The other child had expressed his fear of finding himself on the streets in view of difficult financial conditions in Spain and had added that his mother had told him she would find herself in a very difficult situation if she should return to Spain. The Court noted, however, that the issue of the return had been reduced to a different one – that of ascertaining with which parent the children preferred to live. It was not certain that the children had been able to distinguish the two questions during the hearing.
In the above case, the appeal of the return was allowed, but it was denied and the children were ordered returned to Spain. The Name of case is HC/E/CH 795 [22/03/2005;Bundesgericht II. Zivilabteilung (Federal Supreme Court, 2nd Civil Chamber) (Switzerland);Superior Appellate Court]
[INCADAT cite: HC/E/CH 795]. You may read the case here on the Internet. http://tinyurl.com/nj5bzu
Unfortunately, in Sean Goldman's case --particularly since this appeal came so late -- the likely result is a return, but at great cost and great delay. What a tragedy.
The pain of the child at separation from the family he has known for five years will be great, I am sure. But this case calls to mind the Baby Jessica case of the early 1990s. You can review the Wikipedia summary here. http://tinyurl.com/m5mzep
In the Baby Jessica case, the adoptive parents created the delays in returning an infant they'd hoped to adopt. Then they argued that because she'd been with them so long, the court should not compel her return. They made a huge media production out of the return. Bottom line . . . they still had to return her. And if they'd done it sooner rather than later, the child's grief would have been lessened.
The ABC News story about Sean Goldman is here. http://tinyurl.com/kskv7
For those of you wishing to research further into the issue of Section 13(2) objections of the child to a return, you may investigate this issue (and other legal issues or Hague Articles that impact on return of the child) on the Internet-based International Child Abduction Database(INCADAT).
The International Child Abduction Database (INCADAT) has been established by the Permanent Bureau of the Hague Conference on Private International Law with the object of making accessible many of the leading decisions rendered by national courts in respect of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
INCADAT is used by judges, Central Authorities, legal practitioners, researchers and others interested in this rapidly developing branch of law. INCADAT has already contributed to the promotion of mutual understanding and good practice among the 81 States Parties, essential elements in the effective operation of the 1980 Convention. You'll find INCADAT here online. There is a very helpful search page and there are links to the cases cited so that you may read entire cases.
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