Case Update: Hague Abduction Convention - Right of Custody

The case of Biagioli Da Silva et. al. v. Vieira is, in most respects, a run-of-the-mill Hague Abduction return proceeding.  The parents and children were all Brazilian nationals.  The parents separated, divorced, and shared custody in Brazil.  The Father, Biagioli Da Silva, ran into some difficulties with the law and was incarcerated.  His mother (the paternal grandmother) nonetheless still saw the children and participated in their lives on his behalf, by written agreement, incorporated into a court order in Brazil.  In early 2019, the children's Mother, Vieira, asked the Father for permission to visit family in Orlando, Florida.  He vehemently refused, fearing she would not return.  She, however, convinced the Brazilian court that it was a temporary visit, verified by return plane tickets, and entry to the U.S. on a tourist visa, so the court granted her request over the Father's objection.  The Mother traveled to Florida, but retained the children at the end of the trip.  The Father spent about 8 months seeking recourse in Brazil, before learning he needed to file a lawsuit using the Hague Abduction Convention.  He ultimately commenced this lawsuit in Florida well beyond one year after the retention.  

At trial, the primary issue related to whether the Father (or his co-petitioner, the grandmother) had a "right of custody."   The court concluded the grandmother did not, having no decision-making authority over the children, but the Father did, having a ne exeat right under Brazilian law (which he exercised when he declined to let the children travel to Florida).  This is Abbott v. Abbott in a nutshell.   The Respondent Mother proceeded to argue virtually every exception to the children's return.  Her two main exceptions included a grave risk of harm and the now settled argument.  All arguments were rejected by the Court.  In particular, the Court concluded that the Mother had insufficient evidence to show that the Children were at a grave risk.  Further, even though the children had been in the United States for over a year before the lawsuit was filed, the totality of the circumstances shows they were not settled - they had changed schools and residences, and their immigration status was uncertain having overstayed tourist visas.

The most interesting part of the opinion, at least to this author, came at the end.  The court, even though it did not need to do so, took time describing Article 18 of the Hague Abduction Convention.  Article 18 gives the court discretion to return the children at any time, even if the Mother proved an exception to their return.  Since the mother proved no exception to the court's satisfaction, the court could have concluded its analysis at that point.  The court nonetheless decided to elaborate on what it perceived as the Mother's deceitful behavior, lying to the Brazilian court about her intentions to return to Brazil at the end of her trip, and failing to use the Brazilian legal process to terminate the Father's rights instead of retaining the children in Florida.  The court therefore concluded that even if the Mother had demonstrated an exception, it would nonetheless exercise its discretion and return the children. 



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