Hague Convention on International Child Abduction
The Hague Convention on International Child Abduction is an international compact among the signing countries in which the signatories agree to abide by the rules of the compact and to return children who have been abducted from one country to their home state.
This is a very important matter for any parent who has children traveling internationally, especially with another parent who is traveling to their home country. If that parent does not return with the child, this compact of the Hague Convention is intended to protect the parent from whom the children were removed and send the children back, to permit the home state to determine the child’s best interest and other domestic litigation issues. However, it seems not everyone who signed this compact really mean what they promised. Brazil, we are looking at you.
Nightmare Divorce
In 2013, Dr. Brann and his wife filed for divorce in Harris County, Texas. For over a year, the parties entered into Temporary Orders for possession and access to their child. The child would live with mom, and dad would get a standard possession order. Dad regularly exercised his possession and in 2014, the parties agreed that mom could travel to Brazil with the child to visit family. The parties entered into a contract regarding the trip and dad’s possession upon return. Dr. Brann never imagined mom would never return. Little did he know that she had already enrolled the child in school in Brazil months before and had obtained a job before she ever left the United States.
Over the course of five years of litigation and appeals, Dr. Brann has lived a horror story. In short, the Brazilian courts ruled that the child did not have to be returned to Texas. Yes, shake your head and say “wait, what?” A country that is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction ruled that a child who had resided in that country for mere months did not have to return to his safe home in the United States. The Texas trial court moved forward with the divorce, eventually awarding Dad possession of the child and dividing the parties’ property. Mom did not appear at trial and appealed.
International Comity
On July 24, 2018, the Court of Appeals for the First District of Texas ruled on the appeal in favor of the trial court’s ruling on all counts. The Texas Court of Appeals determined that it was indisputable that a court where a case was begun in Texas with subject-matter jurisdiction over a party does not lose subject-matter jurisdiction after a subsequent case is filed in another country. Further, the Texas Court of Appeals determined that the Texas court is not obligated to honor a foreign court’s ruling (it is called International Comity when a court gives deference to a foreign court’s ruling), but rather it is within the Texas court’s discretion to do so.
When a court should decline to extend comity to a foreign court became the focus of the court’s opinion. The court of appeal’s answer, briefly and bluntly, is when a foreign court’s ruling is extremely wrong. When a court “clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness,” it is within the trial court’s discretion not to give deference to the foreign court.
The Brazilian courts got it wrong a lot in this case. Through three separate motions and hearings, the Brazilian Court failed to follow basic principles of the Hague Convention, according to the First Court of Appeals. The purpose of the Hague Convention is to maintain the status quo of the child prior to abduction to the foreign country. For this reason, the reasons for not returning the child to the foreign country should be a high bar to achieve. Two of the possible reasons are the “well-settled” and “grave-risk” exceptions of the Hague Convention.
Exceptions to Return Children to their Home State
First, the Brazilian court here went way outside the bounds of the Hague Convention’s narrow terms for this exception. Under the Hague Convention, a child who has been wrongfully removed from their home state must have been in the foreign state for more than one year from the date of the commencement of the proceeding before a foreign state can consider a “well-settled” argument. In fact, if a proceeding is filed within a year of the wrongful removal, the foreign state shall return the child. In this case, the child had only been in Brazil a few months yet the foreign court proceeded to make an analysis of the best interest of the child, something specifically excluded from the purpose of the Hague Convention and then concluded in their ruling that the child was well-settled in Brazil.
Second is the “grave-risk” exception. The foreign state must establish that the return of the child would expose the child to physical or psychological harm or “otherwise place the child in an intolerable situation.” Grave-risk is narrowly interpreted to apply to physical or sexual abuse, war, famine or disease. Risks that a child’s home country could not protect them from. None of these were the case for Dr. Brann’s child or the United States.
How did this happen? Who can be trusted? How does this apply to me and my children?
The first lesson here is that there is too much risk to permit international travel to states like Brazil during the pendency of your divorce. Mexico has traditionally cooperated with the United States, Canada, and the Western European countries as well as Japan, but no matter what, there are always risks when a parent or conservator travels with your child to a country they have close ties with. However, courts are not generally inclined to prohibit international travel without good reason. I have long felt that this case is a reason to strike Brazil from the possible travel destinations for minor children. The key is caution and reason. If there are not substantial ties to the foreign country within your family or your partner’s, then this case probably does not apply to you.
Would it have made a difference if they were already divorced and had a final decree? I honestly do not know, but after years of following this case, I believe that even with a final decree of divorce the Brazilian court was dead set on keeping that child in Brazil and would have found another thinly veiled way to make a farce of the legal system and their compliance with the Hague Convention. However, I do believe there is far more safety in a final order.
This case is not going to make anyone sleep better at night, but this last bit might help a little. The court awarded Dr. Brann $230,096.53 in attorney’s and amicus attorney’s fees plus an additional $425,767.27 in “costs, expenses and attorneys’ fees” for actual fees and expenses incurred as a consequence of the foreign abduction and suit, “not for fees of attorneys in this divorce case.” If that will not help him with the cost of flights to Brazil every eight weeks to visit his child, the $1,710.00 per month in child support she is supposed to pay him might. Additionally, he was granted two million dollars for mental anguish and suffering and she had to pay for his appellate attorney’s fees.
It is a hollow victory for a distraught father who still does not have his child home again. For him, the nightmare continues.