By Ryan Kirkham
Recent headlines tell the story of a Texas doctor, Chris Brann, who had his former in-laws arrested, claiming they had helped their daughter flee to their native Brazil with his son in an effort to circumvent an ongoing custody battle.
The facts of Dr. Brann’s case may sound familiar, as they share many elements of another international high-profile parental abduction over a decade ago: The Goldman child abduction case.
Both Dr. Brann’s case and the Goldman case dealt with U.S. parents fighting for custody of their children with Brazilian families and in-laws.
Although the United States and Brazil are both signatories to the Hague Convention on the Civil Aspects of International Child Abduction, both Dr. Brann’s case and the Goldman case highlight the fact that each country has its own – often arbitrary – rules for application and enforcement of the provisions of the Treaty. While the United States gives great deference to the Convention, unfortunately, other countries assign far less meaning to their assent to the Treaty.
What often happens is that, at least at the trial level, a local judge will demonstrate paternalistic favoritism for their own nationals. As a result, U.S. citizens are disadvantaged from the outset, even if the facts squarely align in their favor, (i.e. the US was clearly the home of habitual residence of the child,) frequently resulting in a costly and painful process of appellate litigation. That process may take years. In the Goldman case, the appeals went all the way to the Brazilian Supreme Court. It was there, finally, that matters improved for the American father seeking a return of his son.
The Goldman case took about six years before it reached its final conclusion. With Dr. Brann’s case nearing that same mark, the recent arrests of his in-laws, Carlos and Jemima Guimaraes, may finally be an indication of a significant shift in momentum and leverage for the overall posture of the case. However, it’s important to note the distinction between criminal and civil cases. The question of custody of the child is a civil law matter.
Thus far, Dr. Brann still remains in a deeply disadvantaged position in the Brazilian courts. He’s an American fighting in an unfamiliar foreign system, automatically placing him in a disadvantaged position. He still has an uphill battle ahead because at this point and time, his son’s connections to Brazil are likely more substantial than to Texas. His ex-spouse and her family have prevailed through their duplicity in that regard. However, that reality is clearly and painfully patently unfair.
But, if past serves as some prologue, the Goldman case may offer solace that eventually justice will out, even if it takes going all the way to the top court in Brazil. At the very least, the arrests may provide an opportunity to allow cooler heads to prevail. There is real hope for Dr. Brann … eventually.
Ryan Kirkham is a family law attorney well-versed in the intricacies that arise with international family law cases and complex child custody arrangements. His unique expertise allows him to assist clients facing divorce, jurisdictional disputes, asset tracing and complex property issues.