A New Jersey man’s Christmas gift in 2009 was the return of his son after his wife abducted the child to Brazil six years ago. In 2004, Bruna Carniero Ribiero convinced David Goldman that she should take their son Sean on vacation. Once in Brazil, she filed for divorce without notifying David, and later remarried. Even after Bruna died in 2008, her second husband continued to seek custody until after a five year legal battle, the Brazilian Supreme Court ruled in David’s favor.
Although international abductions like the Goldman case are rare, they can be devastating to everyone involved. Anyone who suspects a partner or former partner may be planning to abduct a child should take care to prevent it.
What’s Supposed to Happen
The U.S., Brazil, and most other countries in the Americas and Europe, as well as Australia, New Zealand, South Africa, and a few other countries, have signed the Hague Convention on the Civil Aspects of International Child Abductions. Under this treaty, when a parent wrongfully takes or holds a child under age 16 in another country, the child usually should be returned home and the home country’s courts usually should decide the child’s custody. Major exceptions include consent, failure of the home parent to act as a custodial parent, sufficient maturity of the child to make a decision, and risk of serious danger to the child. Prompt action is necessary. The complaining parent must take action within a year of the abduction. (Similar federal and state laws are designed to prevent parents from taking children to a different state and moving for custody.)
Although American courts often will recognize a child abduction and refuse to hear a custody claim by an abducting parent, there are not enough automatic safeguards in the system to stop abductions once they start. It is possible, for example, to take a child out of the country without written consent of the other parent; only a few countries will refuse entry to the child without consent. Prevention is the best approach.
Unfortunately, once the child is out of the country, it may be difficult to enforce the Hague Convention. A web site supporting David Goldman reports that even though a New Jersey court had ruled in his favor in 2004, lower courts in Brazil treated his case as a simple custody case instead of an abduction case. He needed to make numerous court appearances in Brazil, both in person and through a lawyer, to convince appellate courts that Sean had been abducted.
Countries following Islamic law, unfortunately, generally do not honor American family court rulings and none have signed the Convention. In general, if a father from an Islamic country is able to get a child to his homeland, the mother will have a very hard time even getting visitation. Prevention is the key here.
Other major non-Convention countries include Russia, China (other than Hong Kong and Macao), Japan, India, Pakistan, Indonesia, and generally most of Africa and Asia. Parents who suspect a child may be taken to one of these countries probably should take care to prevent abductions.
What to Watch For
Common factors in abductions, either intrastate, interstate, or international, include:
- Controlling personality and dismissal of the other parent’s preferences.
- Potential abductor’s family or friends form a network supporting him or her.
- Prior threats or attempts.
- Lack of local financial or emotional ties.
- Preparatory actions, such as liquidation of assets and substantial borrowing, filing a birth certificate in the parent’s home country, or moving of belongings.
- Belief that the other parent has abused or neglected the child.
- Parents from different cultures, particularly if one culture tends to favor one sex in childrearing. In the Goldberg case, for example, the second husband wanted Sean’s grandmother to raise the child.
- Past negative experiences with the legal system.
- Lack of knowledge about the legal system.
Occasionally, a parent may have a mental illness leading to paranoid delusions or sociopathic behavior. These parents, unfortunately, can be very dangerous.
The first step in preventing an international abduction is to write anti-abduction language into a divorce judgment or other custody order. This may include a specific reference to the Convention, if the non-American parent is from a Convention country.
Requiring a bond be posted against abduction so that the parent is put at financial risk can be effective.
Oregon law also requires parental consent or leave of the court to move a parent more than 60 miles further away from their residence at the time of a divorce, and it is common to require permission to take children out of state for extended periods. Oregon courts may be becoming more restrictive in allowing parents to move away with children, and expert witnesses are now available to testify on the effects of separation on children.
A few countries (Canada, the United Kingdom, Australia, and New Zealand) have good records for issuing matching preventative orders if requested, but consulting a lawyer from that country may be advisable. A good lawyer should be able to advise what other terms might be appropriate for a particular case, such as limitations on unsupervised transfers or instructions to police to assist recovery. Once the order is in place, schools, day cares, sitters, grandparents, and possibly others who may have the child at various times probably should be given copies to prevent an unauthorized pickup. Instructions to schools and caregivers are common and wise even without a court order.
The second step is not to get the child a passport unnecessarily. With a few exceptions, both parents must sign a child’s U.S. passport application. The State Department also has a program to warn parents if the other parent applies for a child’s passport, in which case there is a 30 day period to object. This may or may not stop the passport, but it will slow down the process and may give time to get a restraining order to stop its use. It also will expose any false claims by the other parent that the home parent cannot be found. Go to http://travel.state.gov/family/abduction/resources/resources_554.html for instructions on how to register for this program. If the child has dual citizenship, sending the embassy or consulate of the other country a request not to issue the child a passport may help, particularly if a court order with travel restrictions is in place. Some countries will honor the request; some will not.
Unfortunately, once the child has a passport, it can be used. The best way to protect against its misuse is to convince a court to order it be surrendered either to the court or the other parent’s lawyer. A serious risk of abduction probably will have to be proven to get this order, as most judges are not familiar with the issues, but once the order is in place, the State Department can be informed to prevent requests for a new passport. Oregon law also holds that a lawyer who returns the passport in violation of the order may be held liable for malpractice if it results in an abduction.
Some airlines will cooperate in requests to flag ticket purchases for a child. Others may require a court order. If a ticket is bought in violation of a court order, or possibly even in circumstances that suggest a potential abduction, a court may issue a restraining order against allowing the child to board.
If a noncitizen parent abducts a child to a non-Convention country, the parent may be prevented from returning to the United States until the child is returned. A warning about this may help prevent an abduction if the parent has reason to return.
In addition, in some cases, proper counseling may deter an abduction by helping a parent decide not to try. Several organizations can help here, and sometimes there may be resources within the parent’s cultural community. A parent concerned about possible abduction may want to contact me or another attorney to discuss whether counseling or intervention is likely to help, and for appropriate referrals.
If a child is abducted, there are organizations that can help locate the child, and the State Department can help. Unfortunately, this is likely to result in expensive litigation. Getting the child yourself without a court order is definitely not a good idea, as this may result in a kidnapping prosecution. Because of a case a few years ago in which two parents kidnapped their children from a state caseworker at gunpoint, I would expect Oregon police and D.A.s to prosecute.
This is a complex and highly emotional matter. Abduction prevention is best assessed on a case-by-case basis. Some parents may react to restrictions by running away with the child. On the other hand, if sufficient restrictions can be put in place, an abduction can be prevented. Unfortunately, putting those restrictions into place is likely to be costly, but it may be money well spent. Very few parents want to be surprised as David Goldman was.