Divorce Lawyers Directory Blog

Last week, a five year international child custody battle was resolved when New Jersey resident David Goldman was reunited with his 9-year-old son Sean. Sean's mother, a native of Brazil, took him there in 2004. She never returned to the United States; instead, she stayed in Brazil, divorced Goldman, and remarried. Goldman has been trying to get his son back ever since.

Last year, after Sean's mother died in childbirth, Goldman sued in both American and Brazilian courts to obtain custody of his son. However, Sean's stepfather refused to give up custody. Unfortunately, it took a tremendous amount of pressure on the part of U.S. politicians for the Brazilian courts to finally reach the correct decision in the matter. On December 22, Brazil's chief justice ruled that Sean should be returned to his father.

While Sean's mother was alive, the decision of which parent would retain custodial rights to Sean was up for debate. Both parents would have been considered fit parents in the eyes of the court. Therefore, Sean's mother and father had an equally valid claim to custody of their child.

It is important to note that since Sean's relocation to Brazil occurred without the express permission of David Goldman, it could be considered abduction, as governed by the Hague Convention. As a result, Sean's mother was unfairly denying Goldman the right to spend meaningful time with his son, and she would need to prove in court that this relocation was in the best interests of the child.

However, once Sean's mother died, David Goldman legally had an indisputable right to retain custody of his child. Sean's stepfather could not legally challenge this issue. When only one biological parent is living, that parent is the only person under American law who can hold a valid custody claim to the child. In order to deny David Goldman custody, Sean's stepfather would have to prove that Goldman was an unfit parent. According to American law, he would have to either be:

• Adjudicated a criminal
  
• A child molester
  
• Proven to pose a real and serious danger to the child
  

Since David Goldman was not considered unfit by these standards, he should have been awarded custody of his son immediately following his ex-wife's death. The fact that the Brazilian courts took so long to release Sean to his biological father was an absolute travesty of justice. Fortunately, they eventually got it right.

When both parents are still alive, custody will generally be awarded based on what is in the best interests of the child. In the United States, child custody issues are gender neutral, and do not favor either the father or mother. The following questions will be used to determine who receives custody if both parents contest the issue:

• Who is the more nurturing parent?
  
• Who can provide the warmer, more loving home?
  
• Who can provide the best supervision?
  
• Who can provide the best education?
  
• Who will make the best decisions regarding the child's well-being?
  

If one parent is taken out of the picture, either by death or imprisonment, the remaining biological parent has priority over any other individuals, including grandparents, step-parents, aunts and uncles, or siblings, unless the other parent is proven to be unfit by the standards listed above.