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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.  

December 14, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

A federal judge in Houston has struck a blow for child abduction, child abuse and violation of law (CBS News, 12/13/18).  On Wednesday, Judge Alfred H. Bennett sentenced Carlos Guimaraes to just three months in prison and his wife Jemima to a mere one month for their part in the abduction of their grandson Nicholas Brann by his mother to Brazil.

I’ve written about the case here and here among others.

Nico’s mother, Marcelle Guimaraes, was married to Houston physician Christopher Brann.  Nico was their only child.  Marcelle filed for divorce in 2012 when Nico was three years old.  A Houston court granted the divorce and ordered the pair to share parenting and custody (more on that later).  Only then did Marcelle abduct Nico to Brazil with the help of her wealthy parents. 

Brann filed suit in Brazil under the Hague Convention on the Civil Aspects of International Child Abduction.  Courts there found that Marcelle had taken the boy illegally, but have refused to order his return to his father on the grounds that Nico has acclimated to his life there.

As I’ve said before, that is precisely the opposite of the intention of the Hague Convention to which both the U.S. and Brazil are signatories.  By refusing to order Nico’s return, Brazilian courts have rewarded kidnapping.  In time, any child will get used to his/her surroundings.  Therefore, under the Brazilian courts’ rulings, the longer an abductor can evade the law, the greater the chance the courts will reward the abduction.  The Convention required but one thing of the Brazilian courts – that they determine what country was Nico’s primary place of residence.  Given that he’d lived his entire life in the U.S., that shouldn’t have been difficult.  Brazilian courts failed in their duty to protect an innocent little boy.

Now a U.S. court has done its part.  By giving no meaningful punishment to Mr. and Mrs. Guimaraes, Judge Bennett announced loudly and clearly that, in his courtroom at least, international child abduction is no big deal.  So determined was Bennett to send that message that he substantially deviated from federal sentencing guidelines to do so.  Mr. and Mrs. Guimaraes could have served up to three years behind bars.

Why did Bennett do such a patently unjust thing?
U.S. District Judge Alfred H. Bennett noted that the 2013 kidnapping happened in the wake of a broken marriage that had been volatile and fraught with domestic violence, which swayed him to hand down sentences for both defendants that were well below federal guidelines.
“Fraught with domestic violence?”  Hardly.  If it had been, we might have expected Marcelle to have said so at some point during the divorce proceedings, but she spoke not a word until it began to seem she’d lose custody of the boy.  Here’s what I wrote about the matter back in June, quoting the transcript of the divorce testimony.
 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…
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…
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.
In short, what’s been found as fact by courts in the U.S. and Brazil – that Marcelle’s claims of abuse were unfounded, was assumed not to be true by Judge Bennett.  Amazing, but true.    

What’s more, a Houston jury did the same, at least by inference.  It was Carlos and Jemima’s defense that they should be found not guilty by the jury due to the domestic violence they claimed their daughter suffered.  But the jury didn’t buy it, finding them guilty of abetting the abduction.

In short, the domestic violence claim doesn’t’ hold water.  Indeed, if anyone’s abused Nico, it’s his mother.  Child abduction has long been understood to be child abuse.  That makes the irony of Judge Bennett’s ruling almost palpable.  He supports child abuse with a false concern about domestic violence.

Again I say “amazing but true.”

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