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February 16, 2009

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Exemption?

Doesn't the Hague Convention allow an exception to be made in the best interest of the child?

There was an exception made in the original case when the boy's mother said more than a year had gone by and Sean was now integrated and should stay in Brazil. The court agreed and they were following the Hague Convention and the exemptions permitted within it.

Now with the amended case the stepfather is claiming the same thing, but even more time has passed nearly 5 years with little contact from the biological father, and with the boy being fully integrated into Brazil and the family having spent most of his life there.

Doesn't that mean the same exemption permitted in the Hague Convention applies again?

If the court finds again that the exemption applies due to integration, shouldn't the child's customary residence be considered Brazil, where he's been for 4.5 years and have a custodial case held there?


RESPONSE:

WRONG.
When the mother did not return from her 2 week vacation to visit family in Brazil, the father filed a Hague Claim in New Jersey seeking the return of his son and was granted temporary custody. That order was then delivered to the court system in Brazil for enforcement purposes. Unfortunately, instead of simply returning the child to New Jersey as required by the convention, the Brazilian court did nothing, letting the matter sit. As a result of the Brazilian court's refusal to honor its obligations under the Convention, 4 1/2 years has passed and now the step father is trying to argue that he should be permitted to retain the child in Brazil. Unfortunately, to permit such a result simply rewards someone for not complying with their legal obligations and permits a terrible injustice to the natural father.

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  • For further information or a consultation on any divorce or family law issue, please contact:

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