Mar 16, 2009
International Child Abductions and the Best Interests of the Child
 |
By: Luke Gilman | Other Posts by Luke Gilman Go to Comments | 2 Comments |
Solangel Maldonado offers some intriguing thoughts on a post at Concurring Opinions: International Child Abductions and Children’s Best Interests. An author of the forthcoming edition of Family Law in the World Community, Prof. Maldonado is an expert on situations such as 8-year-old Sean Goldman’s.
The facts are succinct - in 2004, Sean’s mother Bruna took then 4-year old Sean to her native Brazil on vacation. Sean’s father David was planning to join them a week later. Instead, Bruna informed David that she was divorcing him and would stay in Brazil with Sean. Bruna later married the Brazilian lawyer who represented her in the subsequent custody proceedings and died following complications in the birth of their daughter. Following his mother’s death, the Brazilian Family Court judge gave custody of Sean to his stepfather and denied Mr. Goldman’s visitation request.
In Maldonado’s mind, the ‘best interests of a child’ may cover a multitude of sins.
Although Mr. Goldman is certainly not to blame for the loss of his child, the Brazilian family court’s decision to deny him custody might actually be in Sean’s best interests. Most U.S. states recognize that parents have a fundamental right to the care and custody of their children and will not award custody to a non-parent over a parent unless it would be detrimental to the child’s welfare. This might be one of those cases where a child will suffer serious psychological and emotional harm if the court awards custody to a parent over a non-parent. Sean did not see his father once in almost four and a half years, and a return to the U.S. where he has not been since he was 4 years old (he is now 8), far away from his 7 month-old sister, his stepfather, and maternal grandparents would likely be detrimental. Children are resilient and Sean will probably be able to bond with his father once again, but it would be foolish to ignore the potential harm to a child if he is removed from his home and the people (such as his stepfather and grandparents) who may have become his psychological parents.
Very little can be said to defend the actions of Sean’s mother in this case. By taking Sean to Brazil under the pretext of a vacation and keeping him there, she deprived Sean of his relationship with his father and deprived David Goldman of his relationship with his son. Without some evidence of extraneous circumstances, that action was almost certainly not in the best interests of the child.
From an ex ante perspective, it’s difficult to see how the Brazilian court has not effectively condoned international child abduction and has not thereby encouraged such acts by others in the future. There is no incentive in such a world for divorcing parents to seek a mutually-acceptable custody solution or to respect the child’s right for a relationship with the other parent.
That set of incentives is not in the best interest of that child or any other.
Only if we take an overly narrow view of ‘best interests’ can we justify ignoring such effects. Maldonado speculates that it would be detrimental to remove Sean now that he has been settled in Brazil for almost four and a half years and has relationships with his 7 month-old sister, his stepfather, and maternal grandparents. Shouldn’t we weigh this against the continuing detriment of being deprived with his relationship with his father? Sean has already been harmed in a nearly identical way. He has already been deprived of important familial relationships, moved away from a country he had known for 4 years and to a new nation which he would have to adapt. Was it merely overestimating the value of the status quo?
The Brazilian court implicitly condones that harm by justifying its custody decision on avoiding a nearly identical harm. The standard for effectively terminating parental rights based on the best interest of the child must be much higher if the jurisprudence in this area of the law is to make any sense.
Related posts:
- Use of Support Dogs in Child Testimony in Court CNN had a segment on the use of support dogs...
- Interdisciplinary Child Welware Course, Capital Law, Columbus, Ohio, May 2009 INTERDISCIPLINARY CHILD WELFARE INSTITUTE (ICWI) At Capital University Law School...
Related posts brought to you by Yet Another Related Posts Plugin.
Prof Maldonado may be an expert in family law, but I doubt he can be considered an expert in situations such as Sean & David Goldman or any other international child abduction…UNLESS he has first hand experience of a child or grandchild being abducted.
‘Best interest’ surely cannot be that of a selfish, spiteful mother. Snatching a child from their father violates his rights as well as the rights of the child. The taking parent has no idea of what the ‘best interest of the child’ happens to be because she is too busy acting on her own self-interest.
The taking parent, has committed a crime. When will the legal authorities in the US finally step up and go after these criminals? What could be more important than a child, an American child, a US citizen? If there is a court order, then just go get the child.
When will Brazil start honoring the treaty they voluntarily signed? Most likely NEVER, unless the US does something to make them sit up and take notice, maybe stop sending aid to Brazil? The US should do something to put a halt to their non-compliancy. Whatever the case, something has to change, and it needs to be sooner than later. There is NO EXCUSE.
The good news today is, that it took a decent congressman to put his foot down and threaten the duty free trade agreement. Results, as we now today, where immediate, and the Chief Justice of Brazilian Supreme court finished the (il)legal maneuvering by the Brazilians.
Money talks, b…t walks as some wise man already said before me.
Happy New Year for Sean and his father.