Sean Goldman case: Child ordered to return to US — no, strike that

It looked like the five-year custody case that had risen to the highest levels of the Brazilian and American governments was drawing to a close. On Monday, a federal judge issued a sweeping ruling that ordered the Brazilian family of 9-year-old Sean Goldman to deliver him to the American consulate in Rio de Janeiro by 2 p.m. today. His American father, David Goldman, flew to Brazil almost as soon as he heard the news. The Brazilian family — the stepfather, Sean’s maternal grandparents, and other relatives — would have the right to come with the boy to New Jersey and spend the next month with the boy as he adjusted to his new environment. (Sean’s mother, Bruna Bianchi, died while giving birth to Sean’s half-sister last year.) Eventual custody arrangements would be decided by New Jersey courts, as prescribed by the Hague Convention on the Civil Aspects of Child Abduction.

But it was not to be, at least not yet: Tuesday night a Supreme Court justice, Marco Aurelio, stayed the order at the request of a minor political party. According to an article published on the Supreme Court’s website, “The sentence in question interpreted the Hague Convention in detriment to the fundamental rights of the 9-year-old Brazilian minor, given the search and seizure order determined to send the child immediately to the United States, in contradiction to decisions made in other concrete cases. Fundamental rights guaranteed by the Federal Constitution of 1988 are violated by the ruling, such as a child’s and adolescent’s rights to protection of family.”

The justice’s ruling is in utter contrast with the 81-page lower court’s ruling written by judge Rafael de Souza Pereira Pinto. Pereira Pinto’s ruling [Download in Portuguese: PDF Part I — Part II] was a systematic dismantling of pretty much every argument put forth by Sean’s Brazilian family. It ruled the family was in violation of the Hague Convention both when Sean’s mother retained him outside the United States and, once more after she died, when the stepfather kept him in Brazil; that it was probable they had acted to prevent visitation by David Goldman over the years, alienating Sean from his father; that arguments that Brazil was now the “habitual residence” of the child were invalid because that residence was based on illicit act (but even if they were valid, the father’s rights still had priority), and so on.

He also refuted what has recently been the Brazilian family’s main argument: that Sean wants to stay in Brazil. “Sean is not capable of deciding what he really wants,” reads the decision [this is my quick translation], “either because of the inherent limitations of maturity at his tender age, or because of the fragility of his emotional state, or because he has been subject to the process of parental alienation by the Brazilian family.” It goes on to note that in an evaluation by a team of psychologists, Sean’s initial response to the question of where he wants to live was actually “Tanto faz.” (That’s Portuguese for “Whatever.”) Questioned again by his mother's family's representative on the team, he said he preferred to stay in Brazil, according to the ruling.

In many spots, the decision takes on a harsh tone. Here’s a typical passage:

“... it is not reasonable — in fact, it reaches the level of surrealism — to admit that a given person, without family rights over the minor — a third party — opposes the handing over of the child to the father, or mother, or both, under the argument that the minor is integrated into his new environment.

"To allow this possibility means opening dangerous breaches capable of consecrating true absurdity. And absurdity, as it is well known, cannot find support in the Judiciary Branch.”

Many Brazilians might object to that last statement, saying absurdity (or “nonsense,” to use another possible translation) does indeed often find its way in Brazilian judiciary proceedings. David Goldman, who flew from New Jersey to Rio on Monday night thinking he'd be picking up his son today at 2 p.m., almost certainly feels that way.
 

http://www.globalpost.com/notebook/brazil/090603/sean-goldman-case-child-ordered-return-us-no-strike