Brazilian Court Uses Overturned ‘Precedent’ to Support Denial of Return of Kidnapped Child

July 1, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Continued from Friday.

Judge Arali Duarte’s decision to ignore the plain wording of the Hague Convention on the Civil Aspects of International Child Abduction and deny Dr. Christopher Brann the return to the U.S. of his son Nico is, in current parlance, quite a piece of work. To say that it is transparently biased against an American father and in favor of a Brazilian mother whose parents just happen to be quite wealthy and influential is to understate the matter altogether.

As I’ve said before, Judge Duarte was wrong on the law and on the facts. Here is a bit more detail on those concepts.

First, in the absence of any legal precedent for her ruling that return of the child to his country of habitual residence wasn’t required, Duarte simply made up her own. Readers may recall the Sean and David Goldman case several years ago in which David’s Brazilian wife abducted their son Sean to her home country. David brought suit under the Hague Convention, but return was denied by the initial court.

It was that decision on which Duarte based her ruling against Dr. Brann. The only problem with that was that the Supreme Court of Brazil later overturned the trial court’s ruling and returned Sean to his father in New Jersey.

So the sole legal precedent cited by Duarte is no precedent at all. There is no other case in the jurisprudence on the Convention to support Duarte’s ruling and countless that oppose it. That’s about par for the course for her.

Duarte’s patent bias in favor of Marcelle Guimaraes is astonishing. For example, Guimaraes clearly perpetrated a fraud on either the Brazilian state or federal court. She did so by filing as genuine two separate sets of documents demonstrating Nico’s enrolment in school. Because one set was dated long in advance of her abduction of him, those documents showed that the abduction was pre-meditated by her. So, having filed the correct ones in state court, she and her lawyers simply forged another set so they would appear to negate that pre-meditation. Doing so is a federal crime in Brazil and Duarte knew about the forgery and the fraud and ignored both.

If that’s not outrageous enough, try this on for size: Duarte “supported” her refusal to return Nico to Dr. Brann’s care with the fact that, when he’s at work and Nico not in school, a nanny would care for the boy. Really.

“[I]t cannot be justified that this is created or he has to be under the care of a nanny in the US (even if its not for the full time, that it is only when the father is not present) . . . since a nanny, even if the best one, would hardly love and care for a minor as a mother.”

Let’s see. They don’t have nannies to care for kids in Brazil? Of course they do, and guess what. Marcelle has not one but two nannies to care for Nico when she’s away. When Dr. Brann does it, it’s an offense against, well, something, but when Marcelle does it, all is well. Did I say bias? I believe I did.

Duarte went on:

“[T]here is a risk that the minor be subject to dangers of psychological harm if returned to the United States and find himself living under the care of the father away from his mother because the said return can cause a significant disruption in his routine and the environment to which he is integrated.”

So, if the courts did their job and returned Nico to the U.S. and his father, that would subject him to “dangers of psychological harm.” But when Marcelle illegally deprived the child of the only home he’d ever known, his father and his paternal extended family, there was no such danger. The former would be legal and of course by now Nico is four years older than he was when his mother kidnapped him. So whatever danger there is now was multiplied several fold when he was just four. Duarte cares not a whit.

And why, if Nico is returned to the U.S., is it necessary that he be apart from his mother? Marcelle can as easily catch a flight to the U.S. as she did from here to Brazil. And Dr. Brann has loudly proclaimed that, if Nico is returned, he will set aside any rights he has to bring civil or criminal actions against her. Duarte was on a mission to thwart the Hague Convention and rubberstamp an illegal abduction. Facts and logic weren’t about to get in her way.

Perhaps the most obnoxious indication of her bias against Dr. Brann came with this passage from her order:

As the plaintiff has been a missionary, he should again act as a true Christian and regret everything he has done wrong in relation to Mrs. Marcelle . . . forgive his ex-wife for the mistakes she has committed… as the forgiveness and love of neighbor are basic rules of Christianity…

In a sane world, the “Christianity card” wouldn’t be the smart one to play. After all, it’s not as if Marcelle’s behavior has been exactly pristine from a Christian standpoint. Lying to multiple courts, child abuse, adultery, cruelty and denying to a child his loving, nurturing father don’t conform very well to Jesus’ command to Love Thy Neighbor. Duarte of course knows this very well, but again, she had a job to do – keep Nico in Brazil – and she would allow nothing to prevent her from doing it.

In the final analysis, it’s hard not to conclude anything but that this is a case of undue influence on the Brazilian judiciary by the wealthy and powerful parents of Marcelle Guimaraes. Nothing else explains the frank bias against Brann and in favor of Marcelle. Nothing else explains the open disregard for established law of Brazil and under the Hague Convention.

And that may just be the end of it. Dr. Brann is out of money and the U.S. State Department is doing little to support him. Such is life for left-behind fathers like Brann and countless others. When the courts of signatory countries decide to ignore the plain meaning of the Convention, there’s not a lot anyone can do.

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