Category: Blog

July 5, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Back on May 25^th, I wrote this piece on new family law legislation currently before the Canadian Parliament.  I pointed out that the bill would do little worth doing.  (Changing terminology is hardly earth-shaking.)  And of course it entirely ignores the concept of shared parenting.  I further said that, since it’s embraced by Canada’s family law bar, the bill is automatically suspect.  No family law section in the United States has ever supported a shared parenting bill, mostly because shared parenting threatens lawyers’ fees.  Family lawyers thrive on conflict and an equal parenting presumption would tend to make child custody issues easier to understand and less threatening to both parents, thereby reducing conflict.

In short, I excoriated both the bill and the lawyers.  Now I learn I was too kind (Advocate Daily).

It seems that bill C-78 would in fact do something significant.  It would make Canadian family law even worse than it already is.

The Bill C-78 amendments appear to demote one of the most positive aspects of the current Divorce Act, namely the pre-eminence of the “friendly parent” provision, [attorney Gene C. Colman] says.

“The bill breaks it up and equates that factor with a plethora of others, notes Colman.  “That’s why this new Bill is a retrograde step for children and a potential boon for more litigation, not less.  That might be good for lawyers, but it is certainly not good for Canadians.”

In short, supporting the child’s interest in maintaining a meaningful relationship with the opposing parent may be a nice idea, but, under bill C-78, it wouldn’t be necessary.  Refusal to do so could be counterbalanced by other factors.  Calling that “retrograde” is stating the matter entirely too cautiously.

And of course, since there’s nothing in the bill requiring a presumption that both parents are necessary to children’s well-being, it flies in the face of the established science on children’s best interests.  You remember children’s best interests; those are the things judges are supposed to promote in every child custody case they decide.  But C-78 ignores the one thing we know does exactly that in most cases.

Needless to say, a law that presumes equal parenting to be in children’s best interests never sets equal parenting in stone.  Presumptions in the law can always be rebutted and sometimes there’s adequate evidence to do just that.  Opponents’ claim that equal parenting is a “one-size-fits-all” standard is just making things up.

“Of course there are instances where equal shared parenting isn’t beneficial and that’s why it can be rebutted on defined grounds,” he says.

But even the suggestion that parents might be presumed to be equal by the law is too much for the lawyers who oppose any change that might threaten their earnings.

“I apologize to my colleagues practising family law, but we need to step back here and look beyond the billables and find ways to take conflict out of the process and avoid going to court on these issues,” Colman tells AdvocateDaily.com.

And let’s not forget two other things.  The first happened 20 years ago.

He says the roots of the political discussion that ultimately led to many advocating a rebuttable equal shared parenting presumption stretches back to the special joint committee report of the Senate and the Commons — For the Sake of the Children. 

“That report, published in December 1998, did not go as far as recommending a rebuttable presumption for equal shared parenting, but its recommended progressive reforms certainly provided an impetus for those who believed that this was the correct way to proceed,” Colman says.

For the Sake of the Children made it clear that Canadian family courts were ill-serving children by separating them from one of their parents post-divorce.  It called for substantial change in the way parenting time is allocated.  That was in 1998 and, if anything significant has changed since then, it’s nowhere apparent.

The second is that Canadians overwhelmingly support equal parenting.  Survey after survey demonstrates the fact, but Parliament remains uninterested in the desires or opinions of its members’ constituents.  As the ever-excellent Paulette MacDonald, board member of the Canadian Equal Parenting Council, said in this letter to the Toronto Star “Bill C-78 fails to give sufficient credence to the views of the majority of Canadians who support equal shared parenting under child custody law.” (Toronto Star, 6/27/18)

Ms. MacDonald, you, like me before you, are too kind.  “Sufficient credence” would be including a presumption of shared parenting in C-78 and nothing less, but the bill ignores shared parenting altogether.

Bill C-78 is unacceptable.  Canada’s kids and their parents deserve far better.  The bill should be defeated and real reform of family law, including the presumption of equal parenting, should finally, after all these years, go forward.

From Everyone at the National Parents Organization, have an enjoyable and safe 4th of July.  Don’t even think about family court reform.  Save that until the 5th.

July 2, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The Florida Supreme Court has taken a small step toward sanity in the Sunshine State (WPTV, 6/29/18). For the first time, it ruled that an unmarried father has standing to assert his parental rights to a child born to a mother who’s married to another man. Prior to the ruling, such a father had no legal rights to the child because the law established the husband as the father.

The linked-to article highlights two fathers, Christopher Farrell and John Karpinski who found themselves in that position.

Christopher Farrell got to hold his son once months after he was born.

“It gets emotional; it hurts at times trying to think how far he’s progressing, what’s his speech like? Is he saying different words? What’s his favorite animal?” said Farrell.

Three years ago, he found out his then-girlfriend was pregnant, and he put together a nursery at his Loxahatchee home for his soon to be son. During her pregnancy, Farrell said she got back with her husband and cut off all ties with him.

That last clause gets to the heart of the matter – “cut off all ties with him.” Stated another way, till now in Florida, a married woman had total control over the parental rights of her extra-marital boyfriend. If she wanted him in their child’s life, he could be; if she didn’t, there was nothing he could do about it.

In this country, as throughout the English-speaking world, we say that fathers have parental rights, but all too often the exercise of those rights we place in the mothers’ hands. So family law and family court practice routinely take children from fathers post-divorce. His “rights” entitle him to see his child occasionally, usually for four days per month plus a few hours during the week. And if Mom chooses to make exercising that meager visitation difficult or impossible, she can with little pushback from the judge.

Adoption laws provide an even more extreme result. Putative father registries require unmarried men to in some way intuit that sex with a particular woman resulted not only in pregnancy but in a child. Dad’s failure to file the proper documentation with the state within the proper time-frame will result in his being removed from any knowledge of or right to intervene in the adoption of his child. So if Mom decides not to mention the existence of a child or her intention to have it adopted, Dad’s out of luck. Again, his “rights” her choice.

Paternity fraud is much the same. No law anywhere requires a woman to simply inform the father that he has a child. As before, somehow he’s supposed to figure it out for himself. How he’s supposed to do that, no one explains. As I’ve written before, this is the only place in American law that we place the onus on the person without knowledge of legally material facts instead of on the one with knowledge. In the commercial arena, we long ago gave up the notion of caveat emptor. So if A wants to sell his car to B, A has to disclose any material problems with the car prior to the sale. We don’t require B to figure out the problems because A has knowledge of them.

We protect car buyers, but not fathers. We allow mothers to control whether fathers know about and can establish rights to their children.

So the new Florida ruling is a small step toward fathers being able to exercise their own parental rights.

But it’s only a small one.

[Farrell] now has new hope that he can go back to court and show it’s in his son’s best interest that he has a relationship with his biological father.

Aye, there’s the rub. Yes, Farrell and Karpinski can assert their rights, but, as is so often the case for fathers, the best interests of the child standard stands in their way. The two mothers having successfully kept the two dads out of their kids’ lives for years, what court will conclude that a child’s best interests require that they now be included in any significant way? My guess is that, if they get to see the kids even a day or two per month, they should call it a win.

That of course re-urges the point I made above. How Farrell and Karpinski managed to find out about their children, the article doesn’t say. But the simple truth is that, as long as we have no legal requirement that mothers tell fathers that they’ve fathered children, dads will still be marginalized in their lives. Yes, Florida fathers can now assert their rights to children born to married women, but they can do so only if they know they exist.

As with commercial transactions, there should be a law requiring mothers to disclose their pregnancies to fathers, and, if there’s more than one potential dad, to all of them.

Still the Florida Supreme Court ruling heads us in the right direction. It just doesn’t take us very far.

July 2, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The Florida Supreme Court has taken a small step toward sanity in the Sunshine State (WPTV, 6/29/18). For the first time, it ruled that an unmarried father has standing to assert his parental rights to a child born to a mother who’s married to another man. Prior to the ruling, such a father had no legal rights to the child because the law established the husband as the father.

The linked-to article highlights two fathers, Christopher Farrell and John Karpinski who found themselves in that position.

Christopher Farrell got to hold his son once months after he was born.

“It gets emotional; it hurts at times trying to think how far he’s progressing, what’s his speech like? Is he saying different words? What’s his favorite animal?” said Farrell.

Three years ago, he found out his then-girlfriend was pregnant, and he put together a nursery at his Loxahatchee home for his soon to be son. During her pregnancy, Farrell said she got back with her husband and cut off all ties with him.

That last clause gets to the heart of the matter – “cut off all ties with him.” Stated another way, till now in Florida, a married woman had total control over the parental rights of her extra-marital boyfriend. If she wanted him in their child’s life, he could be; if she didn’t, there was nothing he could do about it.

In this country, as throughout the English-speaking world, we say that fathers have parental rights, but all too often the exercise of those rights we place in the mothers’ hands. So family law and family court practice routinely take children from fathers post-divorce. His “rights” entitle him to see his child occasionally, usually for four days per month plus a few hours during the week. And if Mom chooses to make exercising that meager visitation difficult or impossible, she can with little pushback from the judge.

Adoption laws provide an even more extreme result. Putative father registries require unmarried men to in some way intuit that sex with a particular woman resulted not only in pregnancy but in a child. Dad’s failure to file the proper documentation with the state within the proper time-frame will result in his being removed from any knowledge of or right to intervene in the adoption of his child. So if Mom decides not to mention the existence of a child or her intention to have it adopted, Dad’s out of luck. Again, his “rights” her choice.

Paternity fraud is much the same. No law anywhere requires a woman to simply inform the father that he has a child. As before, somehow he’s supposed to figure it out for himself. How he’s supposed to do that, no one explains. As I’ve written before, this is the only place in American law that we place the onus on the person without knowledge of legally material facts instead of on the one with knowledge. In the commercial arena, we long ago gave up the notion of caveat emptor. So if A wants to sell his car to B, A has to disclose any material problems with the car prior to the sale. We don’t require B to figure out the problems because A has knowledge of them.

We protect car buyers, but not fathers. We allow mothers to control whether fathers know about and can establish rights to their children.

So the new Florida ruling is a small step toward fathers being able to exercise their own parental rights.

But it’s only a small one.

[Farrell] now has new hope that he can go back to court and show it’s in his son’s best interest that he has a relationship with his biological father.

Aye, there’s the rub. Yes, Farrell and Karpinski can assert their rights, but, as is so often the case for fathers, the best interests of the child standard stands in their way. The two mothers having successfully kept the two dads out of their kids’ lives for years, what court will conclude that a child’s best interests require that they now be included in any significant way? My guess is that, if they get to see the kids even a day or two per month, they should call it a win.

That of course re-urges the point I made above. How Farrell and Karpinski managed to find out about their children, the article doesn’t say. But the simple truth is that, as long as we have no legal requirement that mothers tell fathers that they’ve fathered children, dads will still be marginalized in their lives. Yes, Florida fathers can now assert their rights to children born to married women, but they can do so only if they know they exist.

As with commercial transactions, there should be a law requiring mothers to disclose their pregnancies to fathers, and, if there’s more than one potential dad, to all of them.

Still the Florida Supreme Court ruling heads us in the right direction. It just doesn’t take us very far.

Ameex Testing Blog

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.

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.

June 28, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Continued from yesterday.

Brazilian Judge Arali Duarte didn’t stop at wrongly deciding Dr. Brann’s parenting time with his son Nico, reversing herself a week later and then reversing herself again. No, she went on to utterly misunderstand/disregard the plain meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

That convention first requires a court to determine the child’s habitual country of residence prior to the abduction. In Nico’s case, that country is the United States because he’d spent every minute of his life here prior to being abducted by his mother to Brazil. The next question is whether the child would be at undue risk of harm if he were returned to his home. As a practical matter, that means whether the courts and child welfare agencies of his home country are able to protect him from harm from his parents or others. Needless to say, there’s no serious claim that U.S. courts are unable to do so.

Moreover of course, there was never any evidence that Nico was, or ever had been, in any danger in the care of his father, Christopher Brann. On the contrary, some ten mental health professionals in the U.S. reported Dr. Brann to be an excellent, loving, nurturing father. That evidence was before the courts in Brazil.

The only claim of abuse had been lodged by Marcelle, but she literally never claimed that Christopher had abused Nico, only her. Plus, she’d only raised that claim once in Texas state court and then withdrawn it. She’d never raised it in any proceeding in Brazil.

Despite all that, Judge Duarte appointed a psychologist to interview Dr. Brann. In doing so, she instructed Dr. Elsa de Mattos to opine on the one issue that’s irrelevant to the proceedings under the Hague Convention:

“I determine that the only controversial issue of the lawsuit is to clarify if it is best or recommended that the child stay in Brazil with the mother or return to the US with the father.”

That is precisely wrong. Duarte’s order in fact directly contradicts not only the meaning of the Convention but its very reason for existing. The Convention exists for the purpose of discouraging international child abduction and to establish a procedural framework for dealing with the cases. If, as Judge Duarte’s order presupposes, it were considered appropriate for courts of one signatory country to simply rubberstamp the abduction of a child on the grounds that sufficient time had passed or conditions were better in that country than in the child’s home country, then there would be no reason for the Convention at all.

Judge Duarte’s order directly contradicts the meaning and purpose of the Convention itself. According to her reasoning, courts of a country to which a child has been abducted immediately become, not adjudicators of the Convention, but family courts tasked with deciding a child’s best interests. That is both legally and factually wrong.

Given that her instructions from Judge Duarte misconstrued the purpose of the proceeding in court, it’s no surprise that Dr. Mattos’ opinion was that Nico should remain in Brazil. She reached that opinion after first finding this:

According to the observations made during our study, the relationship of Nicolas and his father is a loving relationship and during the moments in which he is with his father the child interacts with him in a spontaneous manner, he does not demonstrate any negative affection (anger, anguish, rancor) towards his father, nor fear or embarrassment, also demonstrating ease in communicating with him through the English language.

Meanwhile, Brazil’s federal government was weighing in. I’ll say more about that tomorrow.

June 27, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Continuing with the case of the abduction of Nico Brann to Brazil by his mother, Marcelle Guimaraes from his home in Texas.

Dr. Brann’s ex-wife lied to the family court in Houston claiming that he had been abusive toward her. But she soon abandoned the claim and the judge, faced with findings by as many as ten mental health professionals and child custody evaluators in the case, all saying that Brann was an entirely fit and loving parent and some casting doubt on M’s parenting, ordered shared parenting. Realizing that she would never convince the Texas court to grant her sole custody, Marcelle simply abducted Nico to Brazil.

That she did so after long pre-meditation, the evidence makes abundantly clear. For example, she got Christopher Brann to agree in writing to an 18-day vacation to Brazil for her and Nico. That was to begin on July 2, 2013. But as early as April of the same year, she had secretly enrolled Nico in a school operated by her family and, by early May, had accepted a job offer to teach there. The school year was to begin on July 10, just eight days after their arrival.

Having arrived in Brazil, Nico in tow, Marcelle immediately filed documents in court seeking sole custody of her and Christopher’s son. Her filing falsely claimed that Dr. Brann suffered from mental health issues that made it impossible for him to be a proper parent to Nico. In fact, readers will recall, Houston mental health professionals had determined exactly the opposite – that Christopher was essentially free from mental health defects, while Marcelle’s emotional makeup called into question her parental abilities.

But the court in Bahia issued a sole custody order anyway. It did so without giving notice to Christopher that there was a case involving him and his son before it or providing him the opportunity to present his side of the case or the multiple reports by mental health professionals in Texas.

Even with all that, and as I’ve said before, the court in Brazil had but one question to answer. Under the Hague Convention, that question is “What is the child’s country of habitual residence?” The answer to that of course was “The United States.” Given that, Nico should have been returned to Texas where whatever issues Marcelle wanted to present to the court could have been adjudicated.

But of course Texas is the last place Marcelle wanted to have her case heard. The judge there already had a good idea – via her behavior in the litigation, her false accusations, the testimony of their nanny and that of multiple mental health professionals – of Marcelle’s fitness or lack thereof. In short, she knew she couldn’t win there. That’s why she’d abducted Nico in the first place.

Remarkably, the Ministério Público of the State of Bahia, an agency whose job it is to advise state courts, had, by July 17^th, informed the judge of the court in which Marcelle had filed her case that he had no jurisdiction to decide the case because it was one of international abduction.

Given the existence of an international standard to regulate the matter, that is, the Hague Convention [on the Civil Aspects of International Child Abduction], this body finds that the Court is incompetent to hear and judge the child’s custody and visitation, who, although Brazilian, was residing abroad. Accordingly, the Public Prosecutor’s Office is in favor of recognizing the absolute incompetence of this court.

The judge completely ignored that advice and gave sole custody to Marcelle.

Christopher filed suit in Bahia demanding Nico’s return pursuant to the requirements of the Hague Convention. That case landed in the court of Judge Arali Marciel Duarte. If she was competent to hear the case, her behavior doesn’t indicate it. She apparently has little or no idea of the plain meaning of the Hague Convention or how to gather evidence to make a ruling.

Despite the Bahia state court judge having given Dr. Brann liberal visitation with his son during the pendency of the court proceedings, Judge Duarte immediately reversed that order and demanded that any meetings between Christopher and Nico be supervised. To manage that, she had to ignore virtually all the evidence before her. Brann’s lawyers placed in evidence all the testimony of the nanny, Ana Licon, and the reports of the various mental health professionals that had formed the basis of the judgement of the Houston court.

Duarte simply ignored it all. Her order makes no mention of any of it, but uncritically cites the false and entirely unsupported allegations made by Marcelle.

A week later, she reversed herself writing,

According to the psychological report . . . the applicant “does not demonstrate any psychological or psychopathological problems” and “does not represent a danger to himself or other people under any theory.” Therefore, the supervised visitation regime set up . . . is not justifiable anymore, because there is no risk that the child will be susceptible to physical or psychological harm, according to the abovementioned report.

Two months later, she would reverse her decision again.

But Duarte was just getting started. By comparison to her rulings on the Hague Convention, her rulings on Dr. Brann’s fitness were positively Solomonic in their wisdom.

I’ll get into that next time.

June 25, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

I return now to the astonishing case of Dr. Christopher Brann, his ex-wife, Marcelle Guimaraes and their son, Nicolas (Nico).  Readers will recall that Marcelle abducted Nico from Texas, where he’d lived all his life, to Brazil, her home country.  Her parents, Carlos and Jemima, assisted in the abduction.  They were apprehended in Florida, arrested and tried in Houston, where a jury found them guilty of aiding international kidnapping.  They will be sentenced on August 2.

Since my last post on this case, I’ve received additional information that, predictably, reveals the case to be even more outrageous than I previously thought.  Nico has been held in Brazil in clear violation of the Hague Convention on the Civil Aspects of Child Abduction, a fact even the government of Brazil openly acknowledges.  And yet there he remains, at least for now.  Put simply, the courts of Brazil are in frank and open violation of the Convention to which Brazil and the U.S. are signatories.

But today I want to go back to the original divorce and custody case that took place in Houston, Texas.  Brann and Guimaraes were married in February, 2008 and Nico was born in September of the same year.  Christopher was, from the very beginning, a caring and devoted father, despite his demanding career as a practicing physician and professor of medicine.  The couple employed a nanny, Ana Licon, who testified in the divorce and custody case about her day-to-day observations of Christopher’s and Marcelle’s parenting.

“every minute [Dr. Brann] had off . . . [where he] . . . was not working he would dedicate all that time with Nico.”

By comparison, when Marcelle was at home with Nico, it was Licon who cared for him.  About Christopher’s relationship with his son, Licon testified that it was,

“[v]ery close, very intimate.” But when asked the same question about Nico’s relationship with Ms. Guimarães, she merely responded “no.”

Often, Marcelle picked fights with Christopher, during which Nico would cry, but he was never fearful of his father.  Licon went on to testify that Marcelle

 “did not nurture the child. She did not take care of him. She didn’t dedicate the time to do it with the child.”

Licon wasn’t the only one who preferred Christopher’s parenting to Marcelle’s.  Court-appointed psychologist Dr. Edward Reitman did too.  He described her as,

“an anxious, insecure, mercurial individual . . . [with] . . . little self-control insofar as her ability to deal with situations or individuals she cannot control…”

“not necessarily an emotionally compassionate . . . [mother] who displays feelings of security, or warmth in her interactions with her son . . . because she is so emotionally needy herself.”

By contrast, Reitman described Christopher this way:

“emotionally easy-going, loving, nurturing, [and a] very positive influence on his son’s life”… “I feel quite strongly that the nurturing, love and care that . . . [Nico] can obtain from his father would be a very positive constructive factor in his future emotional development.”

That was all during the divorce and custody case that Marcelle filed in September, 2012, when Nico was four.  She filed in Harris County, Texas and made no mention of any form of abuse or domestic violence by Christopher.  But clearly, with the testimony of the nanny and Dr. Reitman, the case wasn’t going as Marcelle had hoped. 

She didn’t help her chances by, according to Licon, having various men spend overnights with her and consuming marijuana in the home with Nico. 

Her response to her own shortcomings was to fire her lawyer, hire a new one and, for the first time, allege that Christopher had been violent toward her.  The judge didn’t buy it.  Indeed, even when Marcelle browbeat Christopher into signing a confession to DV – a statement that wasn’t true – the family court judge ignored it.  It’s in fact not hard to conclude that the judge saw Marcelle for who she is and ruled accordingly.

In the end, the judge ruled that Marcelle’s claims were not only false, but were made “with malice” and granted the divorce, not on the basis of the usual boilerplate “irreconcilable differences,” but on the basis of “adultery” and “cruelty” on the part of Marcelle.  Family court judges don’t use that language unless (a) there’s plenty of evidence to back it up and (b) they’re very unhappy with one litigant.

But by that time, Marcelle had already abducted Nico to Brazil.  From here it looks like she knew she was losing the case and that her only hope of having Nico all to herself was to flee the country.  The evidence makes it clear that she premeditated doing so, arranging in advance for school among other things.

She told Christopher that she wanted to go to Brazil so that Nico could see her family there.  He agreed and the two entered into a written agreement for her to be gone about three weeks.  She never intended to return, and so far hasn’t.

More on this next time.