On June 5, 2009, MSNBC wrote a story about David Goldman, a father in New Jersey who is attempting to regain custody of his son, who is currently in Brazil (in this post, however, I will be quoting from articles from MSNBC, CNN, AOL, and an AP article at NJ.com. I am still confirming all of the facts in the case, but from what I can tell, on June 16, 2004, David drove his wife, Bruna, and their son, Sean, to the airport for a 2-week vacation. After arriving in Brazil, she called him to let him know that she wanted a divorce; she received one in Brazil. After receiving a court order for a custody hearing from a New Jersey court, both American and Brazilian law (and international law) required Bruna and Sean to come to New Jersey. The Brazilian courts waited for a year to decide the issue, and after that time determined that it would be best, considering the time elapse, for Sean to stay where he was.
Four years later, after marrying a lawyer in Brazil, Bruna died in childbirth, leaving Sean, David (the birth father), and Sean's step-father. The question now arises, "What should be done?" Appealing to the Hague Treaties, David claims that the child should be brought to New Jersey for a custody battle, since in the US, his marriage is potentially still legal (the divorce certificate was only from Brazil; it was technically still legitimate in America). Today, after another year of struggle, it sounds like the Brazilian courts believe a custody trial in New Jersey is in order.
Unfortunatley, it's not that simple: a progressive wing of the Brazilian government argues that taking the child from Brazil would be depriving him of an environment of "happiness, love and comprehension." Secretary of State Hillary Clinton and President Obama have intervened on behalf of Goldman, arguing that the child should be returned. How quickly this issue will be resolved is uncertain at this time.
[WARNING: This is the part where Centaur moves into analysis, not reporting. Everything below is his opinion based on research.]
This issue does raise the question, "To what extent are international treaties followed by other countries, and do they accomplish what they set out to do?" Is "the best interest of the child" (language used in the CRC) to stay in Brazil which he has known for a little more than 50% of his life, or is it in his best interest to return to the US to his father? Which father has more claim (since both apparently have claims)? How should this be resolved?
I don't have enough evidence at present to say where Sean should go, but I have determined this: the jurisdiction of treaties is important. The Hague Treaties do not say that Goldman has a stronger custody claim: rather, it entitles him to a custody hearing. This treaty is intended only to assist coutries in disputes regarding parents separating across international lines. It was designed to prevent abduction/trafficking of children. The goal is not to tell countries what they should do with their citizens, so much as it provides an environment for countries to retain their citizens; the decision-making power is still in the hands of the governments involved.
THe UNCRC, on the other hand, provides that "the best interest of the child" must be met in each case. Who determines that? Unfortunately, not the parents who know the child well, and not even the child (Sean has been having trouble with this situation as well). Who makes the decision? The Committee on the Rights of the Child; several individuals in Switzerland who have probably never studied our Constitutional Law in-depth, who possibly have never visited our shores, and who certainly have not studied our state child protection laws in-depth.
The government currently has the jurisdiction necessary to prevent harm to children, without denying parents the right to direct the upbringing of their own children. The Parental Rights Amendment would solidify this basis, protecting the child by empowering parents. Learn more at parentalrights.org.
Watching the stars,
"We promise you our swords." - Glenstorm