A Brazilian Judge Wrong on the Law, Wrong on Child’s Best Interests

June 29, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Continued from yesterday.

In January, 2014, two separate arms of the Brazilian government weighed in on the case of Marcelle Guimaraes’ abduction of her son, Nicolas (Nico). Each of them supported Nico’s father, Dr. Christopher Brann. Those were in addition to yet a third arm of the government, the Ministério Público, that had previously advised the Bahia state court that the matter was one of child abduction governed by the Hague Convention on the Civil Aspects of International Child Abduction and not by the family law of Brazil.

The Brazilian Central Authority, an arm of the Foreign Ministry, concluded that the case was one of abduction, that the Hague Convention governed its disposition, that Marcelle had illegally abducted Nico and that there were no exceptions to the rule requiring his return to the U.S.

The Brazilian Office of the Attorney General did likewise. It further intervened in the case on behalf of the Brazilian government and against Marcelle. It informed the court that the Hague Convention required, under the facts of the case, the expedited return of Nico to his father in Texas. That was in February, 2014, i.e. over seven months after the abduction. This is an excerpt from the OAG’s brief to the court:

The Respondent [Ms. Guimarães] removed the child from the United States under the allegation that they would attend to family events, when in truth she already had the intention of trampling the paternal rights and the American judicial system to illicitly fixate the child’s residence in Brazil and here forcefully obtain the exclusivity of his custody . . .

Meanwhile, the BCA hired yet another psychologist to evaluate Christopher, his relationship with Nico and his parenting skills. Like all the others, this expert found Dr. Brann to be a loving father whose son is deeply attached to him.

Nicolas and his father demonstrate that their relationship is permeated by respect, affection and trust, where the child recognizes the figure of authority and security of Mr. Christopher. The father, when calling for the attention of Nicolas to limits or when asking for something, maintains a low tone of voice, with patience and tenderness. Nicolas, in his turns attends to his father looking for his recognition.

By my count, that’s at least 12 mental health professionals and others, both in the U.S. and Brazil, who’ve endorsed Dr. Brann’s abilities as a parent. All of their reports and testimony were before Judge Arali Duarte.

It took until January of 2015 for all the briefs and evidence to be received by the court. Despite international law on the Convention requiring that decisions be expedited, Judge Duarte took six months to render a decision. That decision was wrong. It was clearly wrong on the law governing cases under the Hague Convention. Judge Duarte simply substituted her own opinions for those of experts and her own idea of the law for the unquestionable precedents interpreting the Convention.

Despite finding (as indeed she had to) that Marcelle had abducted Nico in violation of the Convention, in July of 2015, she wrote:

“Returning the child to his habitual residence in the USA would be against the principle of the child’s best interest because . . . distancing the child from living together with his mother and family members and other people with whom he has established bonds in Brazil would bring him down psychologically.”

In short, Duarte decided, contrary to everything the Convention stands for, as elucidated by the three different agencies of the Brazilian Government, that international parental child abduction is perfectly acceptable as long as the abductor can convince a judge that the child would be better off in the country to which he/she was kidnapped. That is, she abandoned her role as adjudicator of cases under the Convention and, through some alchemy, became merely a family court judge deciding the best interests of a child.

Duarte’s judicial malpractice didn’t stop at her incompetent reading of the Convention or her ignoring the position taken by her own government. It extended to her understanding of the “best interests of the child” as well.

Set aside for now the fact that she was clearly wrong on the law. Even if she had been a family law judge ruling on the best interests of the child, she obviously got that wrong too. There is no evidence to suggest that Dr. Brann is anything but the best of fathers. There is no evidence that Nico doesn’t thrive in his care or that the boy isn’t strongly attached to his father.

By contrast, there is abundant evidence that his mother is deficient in nurturing and seems to think she doesn’t have the time to care adequately for the boy. More importantly, because she is a child abductor, she’s also a child abuser. The psychology on that is all too clear. And of course she’s a liar. She’s lied to the court in Texas about abuse, to Dr. Brann regarding her stay in Brazil and to various officials in Brazil claiming Dr. Brann to have serious psychopathology.

So how is it that, even if it were relevant to the case, it’s in Nico’s interest to remain in Brazil, separated from his father and his father’s family, living with such a mother? It’s not. Duarte managed the judicial version of a hat trick – wrong on the Convention, wrong on family law and wrong on the facts.

I’ll finish this scandalous case off tomorrow.

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