Custody in Brazil: David Goldman’s Case Nears End

The last post I wrote (I’ve been less than a constant blogger here) was about David Goldman’s efforts to regain custody of his son, Sean, who was living in Brazil with the extended family of the boy’s mother.  (She had died some years ago, after taking the boy to Brazil.)   I caught this story today.   It suggests that the case is indeed drawing to a close and that Sean will return to the US within the next day or two.  

There are two interesting quotes in the article I wanted to highlight.   The first is from Christopher Schmidt, a St. Louis based attorney.  (I cannot tell if he has any actual involvement in the case, but it appears not.)  He said

The critical lesson from this tragic story is to not permit these child abduction cases to spiral into protracted custody disputes, as happened in Brazil.

This highlights what is for me the larger lesson from this case:  The tyranny of time.   Over time, children form attachments.   (I hope even those who place primary emphasis on biology/genetics will agree with me on this modest statement.)  disrupting those attachments has consequences.    The longer the time, the more substantial the attachments, the more substantial the attachments, the more severe the consequences.    

In some instances there’s some mistake that leads to the child’s placement with the “wrong” parents.   You can see this in the switched at birth cases I have written about before.    The Goldman case is different.  The delays are attributable to a lengthy legal process. 

It often does take time for the legal system to generate results and a good portion of that is defensible.  You want want to give each side a chance to prepare properly and to present its case.   And it takes time for a judge to decide what to do. 

Now it may be that the time consumed in the Brazilian litigation was excessive.  I’m not in a position to say.   But the passage of time in legal cases is inevitable and it has consequences.  I don’t see anything to be done about that. 

The second quote is one from a letter written by Sean’s maternal grandmother.  She said: 

“Our moral foundation values the mother’s role. In the absence of the mother, the raising should be done by the grandmother. That’s how it’s done in Brazil, from north to south, regardless of race, religion or social class. It’s natural that foreigners, with a different foundation, would not understand these authentically Brazilian feelings.”

This, to me, is a nice illustration of the socially constructed nature of family.  It’s easy for me to believe that her statement is accurate–that in Brazilian culture, the mother is of the primary importance and the mother’s mother stands as the second in line, ahead of the father.  We in the US order things differently, at least legally.   The two parents are equal and if one dies, the other stands as the first choice for custody of the child.   To me (and I know those of you who value genetics will disagree) there’s nothing intrinsically better about one or the other system.    (I’m having a little pause now as I think about the extent to which is is deeply gendered and I’m wondering if I’m going to rue the day I wrote this last sentence.) 

It would hardly be surprising if Brazilian law reflected Brazilian social custom in this regard, though I don’t know that it does.   It does seem to me that men who are father’s in Brazil, who I assume are aware of this hierarchy, might play a slightly different role in their child’s life.   In other words, the social custom may create a different reality.  

And then there is the problem exemplified by this case.   Sean is a child of two parents who come from different countries with differing legal and social visions of parents.   How do we resolve that?   The international treaty is an effort to do that, but it is imperfect, as all efforts to resolve this sort of conflict must be.   As with the passage of time, you can see that there will be problems, but you cannot solve them all in advance.

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4 responses to “Custody in Brazil: David Goldman’s Case Nears End

  1. Missing the point that the child was abducted from the US. Its not a matter of which law is more important, US vs Brazil, but rather upholding US law. Child was born and raised in the US and was kidnapped out of the country by the mother and maternal grandparents.

    • I think the word “kidnapped” is inflammatory, although you may find it simply descriptive. The mother took the child to Brazil for a couple of weeks with the father’s permission but then remained there. That’s not what “kidnapping” summons to many people’s minds. That’s why I didn’t use the term.

      As a matter of law, certainly in this case US law should control, and eventually it did (leading to the surrender of the child this AM). I wanted to make a larger point about conflicting cultural standards for who is a parent. We live in an era where these conflicts are quite common (because people travel around the globe fairly freely.)

  2. maurizio de franciscis

    Let me help you clarify the matter: under Brazilian law each parent has equal rights to the custody of the children, ahead of any other relative. In fact, Brazil being a country with a patriarchal culture and a legal framework modelled on that of Italy, the mother’s equality in that right (abandoning the “patria potestas”) is a relatively recent conquest. Furthermore, lamentably grandparents and all relatives other than the parents do not have as yet any legally recognised right to visit the children. So the argument of the grandparents here has no legal grounds in either jurisdiction, and not surprisingly it was rejected in both.
    Maurizio, Sao Paulo

    • Thanks for adding this. It’s very useful to have a sense of how the law there is structured. The strong preference for parents over everyone who is not a parent is a feature of US law, too.

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