NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

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 Plus, she’d only raised that claim once in Texas state court and then withdrawn it.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.

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