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Brazil judge: Boy must be returned to U.S. dad

Brazil's Supreme Court chief justice rules that a 9-year-old boy must be returned to his father in New Jersey.
/ Source: NBC News and news services

Brazil's top judge ruled Tuesday that a 9-year-old boy must be returned to his U.S. father, the latest twist in a five-year custody battle that has frayed relations between the two countries.

The ruling by Supreme Court Chief Justice Gilmar Mendes was a much-sought-after victory for David Goldman, a New Jersey man who has pledged to fight for his son, Sean, as long as it takes.

Goldman said before the ruling that he was holding out hope of being reunited with his son in time to celebrate the holidays in the United States.

Mendes' Tuesday ruling lifts a stay on a federal court's order for Brazilian relatives to hand over the boy. Goldman's New Jersey-based lawyer, Patricia Apy, said late Tuesday that she believed Mendes' order required that Sean be handed over immediately, but she said Goldman's attorneys had not heard from lawyers for the Brazilian family.

Sean was taken by Goldman's now-deceased ex-wife to her native Brazil in 2004, where he has remained. Goldman has been fighting to get him back from the boy's stepfather.

Lawyers on both sides have said there was still a chance for the Brazilian family to appeal to Brazil's highest appeals court, though the chances of success seemed slight.

A member of Goldman's team reached just minutes after the ruling described the father as happy, but said he had seen earlier rulings ordering Sean's return be blocked and was waiting to see if the latest ruling would stick or be enforced.

Goldman, who lives in Tinton Falls, N.J., declined to comment until he learned more about the 50-page ruling.

U.S. Rep. Chris Smith, a New Jersey congressman who traveled to Brazil to offer his support, said Goldman was pleased.

"He was elated, a big smile came to his face, but he said 'I'm not going to let my guard down until it's wheels up," Smith said.

International law
For days the Goldman camp has expressed worries the Brazilian family might try to flee or hide Sean.

Calls to the Brazilian family's lawyer, Sergio Tostes, were not immediately returned.

Earlier, Tostes said the family would consider legal options to keep the boy in Brazil if Mendes lifts the stay. "At the end of the line, if the final decision was to return the boy, we would. But we are far from the end of the line," he told NBC News by telephone before the decision.

Both the U.S. and Brazilian governments argued that the case clearly fell under the Hague Convention, which seeks to ensure that custody decisions are made by the courts in the country where a child originally lived — in this case, the United States.

A lawyer specializing in the Hague Convention said Tuesday's decision by Mendes was the only right one to make.

"It would be virtually impossible to reconcile international law with a ruling in favor of the Brazilian family," said Greg Lewen of the Miami-based law firm Fowler White Burnett.

He said that if the Hague Convention were not followed by the chief justice, "the State Department should immediately issue a travel advisory warning parents not to go to Brazil with their children."

Goldman launched his case in U.S. and Brazilian courts after Sean was brought by his mother in 2004 to her home country, where she then divorced Goldman and remarried. She died last year in childbirth, and the boy has lived with his stepfather since.

In an interview with The Associated Press on Sunday, Goldman said he would allow Sean's Brazilian relatives to visit with his son if he won the case. "I will not do to them what they've done to Sean and me," he said.

Diplomacy damper
The case has affected diplomatic ties between Brazil and the U.S., and has been discussed by President Barack Obama and Brazilian President Luiz Inacio Lula da Silva.

Last week, a U.S. senator reacted to the case by blocking renewal of a $2.75 billion trade deal that would remove U.S. tariffs on some Brazilian goods. The hold was lifted after Tuesday's ruling and the U.S. Senate quickly passed the trade measure.

The U.S. State Department pressed for the boy to be returned. But a Brazilian Supreme Court justice on Thursday stayed the lower court decision ordering Sean to be turned over to his father.

Goldman and Brazil's attorney general both filed appeals Friday asking the Supreme Court to overturn the justice's decision to block Sean's return while the court considers hearing direct testimony from the boy. On Tuesday, Mendes ruled the order no longer valid.

Tostes, had told the AP that he would like to see a negotiated settlement, saying he wanted to end the damage being done to Sean and to U.S.-Brazil relations.

"We're raising the white flag and saying: 'Let's get together, let's talk. We're the adults, we have responsibilities, so let's start to have a constructive conversation,"' Tostes said.

Goldman, however, was in never in a mood to negotiate.

"This isn't about a shared custody — I'm his dad, I'm his only parent," Goldman said. "This isn't a custody case — it's an abduction case."