Guimaraes Case: Brazil Courts Ignore the Hague Convention and Direction from the Government

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 17th, 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.

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