When spouses who have citizenship in more than one country have children, should the relationship sour, the temptation to flee to one’s country of origin can be inviting for some – despite the legal and ethical issues involved.
Most countries have signed a treaty, known as the Hague Convention on International Child Abduction, that dates back to 1982. The purpose of the Hague Convention was to set out a uniform procedure for quickly resolving instances where one parent unlawful removes or retains a child from its country of habitual residence.
The Hague Convention process works better in some countries than others. Certain countries tend to favor their own citizens or subvert the timely process of resolving these disputes.
One particular country that has been a persistent source of frustration for American parents is Brazil. Indeed, Brazil has become so difficult that the State Department now considers Brazil in violation of the treaty. Brazil not only plays favorites and decides custody cases when the treaty explicitly states it must leave custody issues to the country of habitual residence, it also slows the process to a snail’s pace so that litigation drags on for years and will cost tens of thousands of dollars.
One case has drawn attention recently for a new strategy deployed by the federal government.
Chris Brann, an American citizen residing in Houston, and Marcelle Guimaraes, a citizen of Brazil living in the United States, began a relationship and had a child together. The couple never married but did have a written custody agreement.
In 2013, Marcelle misled Chris with regard to taking the child to Brazil for a family wedding; Marcelle never returned to the United States with the child, instead instituting proceedings in Brazil to secure sole custody – something Brazil should never have considered because it lacked the jurisdiction under the Hague Convention to make such a determination. Chris tried to secure the return of the child through a Hague proceeding, but ran into usual complications encountered in Brazil.
With nearly five years passed, federal prosecutors decided to take an unprecedented step and issued a felony complaint charging Marcelle’s parents with international parental kidnapping, alleging they conspired with Marcelle to deceive Chris and arrange for Marcelle to bring the child to Brazil with no intention of returning to the United States.
The parents have been detained in the United States and will not be released pending trial.The prosecutors have indicated that they would drop the charges if Marcelle immediately returns the child to the United States.
It remains to be seen whether this extreme step will work, but for Chris he simply is running out of options if he wants to watch his son grow up. If this legal maneuver does work, it may pave the way for securing compliance with international treaties and perhaps reducing Brazil’s disregard for the requirements of the Hague Convention.
If you have questions about international child abduction, contact us – we can help.