On February 17, 2011, Judge Michael Guadagno of the Superior Court of New Jersey Chancery Division – Family Part (Monmouth County) issued an opinion in the Goldman case in favor of David Goldman, denying the maternal grandparents the right of visitation. Patricia Apy of Red Bank, NJ is David Goldman's attorney. Here are some of the salient facts and highlights of the judge’s opinion:

Sean Goldman’s maternal grandparents, Silvana Bianchi Ribeirio and Raimundo Ribeiro Filho, filed a complaint in the New Jersey court seeking visitation with their grandson pursuant to the New Jersey Grandparent Visitation Statute. Sean had lived with and/or had a substantial relationship with the grandparents for about 6 years in Brazil where David’s former wife Bruna, wrongfully detained Sean in violation of New Jersey court orders and the Hague Convention from July 2004 until Christmas Eve 2010. [Bruna divorced David in Brazil, married a lawyer, and subsequently died in childbirth on August 22, 2008]. Both the grandparents and Sean’s stepfather commenced court actions in Brazil with the intent of keeping custody of Sean.]

Finally the Brazilian courts ruled that Sean had to be released to his father. Sean Goldman is the only child returned under the Hague Convention ever. Approximately 60 children remain wrongfully detained in Brazil despite parents’ demands for their return.

In the grandparenting time case filed after Sean returned to the US, David Goldman, Sean’s father, agreed to allow visitation under certain conditions. The grandparents rejected those conditions and sought to compel visitation over David’s objection. The New Jersey Court dismissed their complaint for grandparent visitation.

Important facts relied upon by the New Jersey Court are these:

In the underlying child custody dispute, once David became aware in 2004 that Bruna would not return Sean to New Jersey, he filed for and was awarded sole legal and physical custody. The New Jersey Court ordered Bruna and her parents to return Sean. On July 5, 2005, David moved to hold the defendants in contempt of the August 26, 2004 and January 21, 2005 orders demanding return, and requested that a default be entered if Sean was not returned. On August 19, 2005, Judge Kapalko of the NJ Court entered an order finding Bruna in contempt of the August 26, 2004 and January 21, 2005 orders. He also ordered that if Sean was not returned within thirty days he would dismiss Bruna’s answer and counterclaim and enter default. Economic sanctions of $1,000 per week pending Sean's return were also ordered against Bruna. Judge Guadagno dismissed Bruna's affirmative defenses under the Hague Convention for failure to state a claim.

Bruna and Sean moved in with Bruna's Brazilian paramour, João Paulo Lins e Silva in January 2005. [Conveniently, Lins e Silva and his father are prominent Hague Convention lawyers.] Documents filed with the Brazilian court stated that Lins e Silva declared that his relationship with Bruna began six months before they moved in together. Thus, Bruna obviously began dating him shortly after her arrival in Brazil with Sean in June 2004. Bruna filed for divorce from David on July 25, 2006 and on July 31, 2007, obtained a Brazilian divorce from David. David was not served with either the complaint for divorce or the final order. Shortly after her divorce from David, Bruna married Lins e Silva.

Bruna died during childbirth on August 22, 2008. No one notified David Goldman. A newspaper account, seen later, alerted David to Bruna's passing. Immediately after Bruna’s death, Lins e Silva, falsely claiming that Sean had been "abandoned," filed for custody of Sean. Apparently the family court in Rio de Janeiro was not made aware that Sean's biological father was not only alive, but was actively seeking custody of him in that very court.

On August 28, 2008, the Brazilian Court granted custody of Sean to Lins e Silva. [At this point in the decision, Judge Guadagno noted in a footnote that it would not grant comity to the rulings of the Brazilian family court that first awarded custody of Sean to Bruna and then to Lins e Silva because those orders deliberately disregarded the laws of New Jersey and were contrary to the clear terms of the Hague Convention]. The Court did, however, grant comity or recognition to Judge Pinto’s order which was in conformity with the public policy of New Jersey with regard to parental rights and is therefore entitled to recognition by this court.

Judge Pinto’s decision, discussed in detail here, also found that, even under Brazilian law, after the death of his mother, Sean’s rightful domicile was with David. [Both Brazil and the United States recognize a parental preference for custody of a child, in the absence of unusual facts, going to the surviving biological parent]. Judge Pinto had flatly rejected the defendant’s contention that David abandoned Sean and found that the Ribeiros' “illicit detention” and refusal to return Sean to David after Bruna’s death violated the Hague Convention.

Judge Guadagno emphasized Judge Pinto’s finding of fact that there was an “urgent need to order the immediate return of the child to the United States” because the court-appointed experts had “clearly and convincingly” demonstrated that “Sean has been subjected to a pernicious process of parental alienation.” Further, Judge Guadagno cited Judge Pinto's finding that Sean had suffered “psychological damage” that was related to “his stay here in Brazil” and that a return to the United States was necessary to limit that damage to Sean which would continue if he remained in “the possession and custody of the defendant...[and] the other maternal relatives.”

The opinion in the grandparenting time case makes clear that the court encouraged the parties to resolve the visitation issues while respecting David Goldman’s conditions intended to protect Sean. Thus, during September and November 2010, the parties exchanged correspondence. The Ribeiros, however, were unwilling to terminate litigation in Brazil, and therefore, a negotiated settlement was impossible. As a result, David Goldman’s attorney Patricia Apy informed the New Jersey Court that David Goldman had withdrawn all offers for any visitation and the court would have to decide the matter.

Prior to addressing the merits of the grandparents' complaint, Judge Guadagno considered whether the Ribeiros appeared before the court with clean hands. The clean hands doctrine is "an equitable principle which requires a denial of relief to a party who is himself guilty of inequitable conduct in reference to the matter in controversy."

Judge Guadagno stated: “If the grandparents have disregarded orders of this court or acted in a fashion that constitutes contempt for its authority in this matter, the maxim might compel the dismissal of their complaint without adjudication on the merits.” Following are some of the findings of the grandparents’ disregard for the New Jersey court orders:

Judge Guadagno found that “[t]here is not a flyspeck of credible evidence in this case to support [Silvana’s sworn] statement” that after she and Raimundo learned of Bruna's plan not to return to the United States with Sean in June 2004, she and her husband "encouraged [Bruna] to come back to New Jersey to work out her differences with David." Judge Guadagno found that “the Ribeiros' claim that they opposed Bruna's decision to remain in Brazil with Sean lacks any semblance of credibility. They fully supported and more importantly, completely financed the long and costly legal battles in both countries to keep Sean in Brazil even after Bruna's death.”

Judge Guadagno cited as further evidence of the grandparents’ disregard for the authority of the New Jersey court the following:

The Ribeiros continue to this day an “unrelenting barrage of litigation in the Brazilian courts . . . all seeking Sean's return.”

“[T]he Ribeiros ignored numerous lawful orders of this court with impunity.”

“After they were ordered to return Sean, their actions in supporting and financing Bruna's and then their own efforts to keep Sean in Brazil not only violated the New Jersey orders but displayed a contempt for this court's authority that is both flagrant and undeniable.”

Judge Guadagno noted that “[t]he contemptuous actions of the grandparents do not automatically disqualify them from seeking relief in the court whose orders they defied. While it is not typical for a miscreant to have the audacity to seek affirmative relief from a court of equity, the maxim has its limitations." To avoid reversal on appeal, the judge thereafter undertook a careful scrutiny of the grandparents complaint, which alleged that Sean will be harmed if their petition is denied. The grandparents' position was noted:

“They complain that their relationship with Sean, which was nurtured during the five years when he was wrongfully retained by them, their daughter and her second husband, has been interrupted.”

Noting the glaring incongruity of the grandparent’s position, Judge Guadagno stated that he would decide their application on the merits, considering the issue of the welfare of the minor child which has been raised. He declined, therefore, to dismiss the grandparents’ complaint on the grounds of their unclean hands.

Judge Guadagno found that fabrications that David had abandoned Sean were so outrageous and so extreme as to go beyond all possible bounds of decency. Describing the grandparents’ actions further, the judge stated:

"Nor, can there be any question that these contemptible actions caused harm to Sean, who had enjoyed a secure, stable and intimate relationship with his father for the first four years of his life only to have that bond severed, all contact cut off, and his young and impressionable mind filled with complete fabrications and misrepresentations as to why his father was no longer in his life. It is difficult to conceive of a more dramatic example of emotional abuse of a young child."

* * *

"It is more difficult to accept Silvana's claim in her certification that she and Raimundo are seeking visitation with Sean because 'We want Sean . . . to know that we love him, [and] to know that he has not been abandoned' given that she, Bruna and Raimundo were the ones who first introduced the concept of abandonment to Sean through their misrepresentations that he had been abandoned by David.' The court also finds no support for Silvana's claim that after Sean learned of the death of his mother she and Raimundo 'did everything that we could to help him recover from the loss of his mother.' Everything, that is, except reuniting Sean with his surviving parent and telling him the truth as to why he had not seen his father in five years."

* * *

"The bond molded by the Ribeiros with their grandson is tainted by a similar infirmity, as it was achieved as a result of Bruna's wrongful retention of Sean and their continued illicit efforts after her death. To allow the Ribeiros to rely on a bond that was formed through their flagrant contempt of the laws of this state and the orders of this court is contrary to every concept of sound and rational jurisprudence. As Judge Pinto found, to accept the Ribeiros’ position would permit them 'to benefit from an illicit act' and 'signify...that illicit acts entail rights, which, as it is very well known, is inconceivable.' ”

Judge Guadagno also noted that David Goldman has not foreclosed visitation with the Ribeiros and that after his arrival in the United States, David facilitated their contact with Sean through email and photographs. However, instead of accepting David's parameters for contact, the grandparents then attempted, without David's knowledge, to communicate with Sean by setting up a coded email account. Even after discovering that the Ribeiros told Sean not to tell his father about the account, David was still open to visitation. Indeed, David did not flatly reject the Ribeiros' request that Sean be allowed to return to Brazil for visitation; he simply took the position that such visitation was premature at the time.

Judge Guadagno next noted that the grandparents refused to accept David’s conditions upon the visitation, choosing instead to initiate this grandparenting time litigation and continuing “their relentless and quixotic court battles in Brazil in an attempt to overturn the decision that reunited Sean with his father.”

Judge Guadagno described the harm that the Ribeiros have caused Sean in the past as “documented,” and found that David's visitation conditions were eminently reasonable, stating:

"The Ribeiros' penchant for incessant litigation seems to have eclipsed their professed desire to see their grandson. Their persistence in seeking Sean’s return through the Brazilian courts, sustains their contempt for this court’s authority and bears directly on the sixth factor of the GVS, whether they are bringing this application in good faith."

Judge Guadagno was also concerned about the Ribeiros’ conduct when they have been allowed contact with Sean. Recall that on Christmas Eve 2010, David voluntarily arranged a phone call between Sean and his grandparents and sent them digital photographs of Sean. The judge said:

"During the conversation, Silvana Ribeiro repeatedly indicated to Sean that they were “fighting in the courts” to get him back and reassured him that they would be successful. This persistent and determined attempt by the Ribeiros to undermine Sean's relationship with David and inject instability into the child’s life is a continuation of the well-documented harm they have caused the child since his arrival in Brazil."

Judge Guadagno then discussed the treatment of Sean by Dr. Charles Diament, Ph.D., which began in January 2010, shortly after his reunification with David. Dr. Diament’s report dated June 21, 2010 found that, although Sean has made a "remarkable" adjustment and has become very attached to his father, "he remains very emotionally fragile and is still trying to adequately integrate his experiences in Brazil with his new life here in America." Dr. Diament expressed “significant concerns” about involving Sean, directly or indirectly, in additional litigation. Judge Guadagno stated that “[a]lthough Dr. Diament’s report was provided to the Ribeiros and presumably they have read and understand it, they continue their attempts to convince Sean that their litigation in Brazil will result in his return to Brazil. No clear-thinking person can fail to appreciate that this kind of conversation will impair Sean’s adjustment and contribute to his distress."

Judge Guadagno found persuasive the fact that Judge Pinto accepted the findings of the Brazlian psychologists and found that Sean had been harmed by the continuous efforts at parental alienation begun by Bruna and continued by the Ribeiros and Lins e Silva. In ordering Sean’s immediate return to the United States, Judge Pinto found that the initial retention of Sean was "unlawful and the continued retention, which was supported wholeheartedly by the Ribeiros, was a 'new illicit act.' "

According to Judge Guadagno, “The Ribeiros continue to pursue several different actions in the Brazilian courts against David. Currently, they are seeking reversal of the Brazilian Supreme Court's decision to return Sean to the United States in accordance with international law. Lins e Silva also continues to file applications seeking the reversal of the decision and the return of Sean. The continuing litigation combined with the Ribeiros’ statements to Sean reasserting their efforts to return him to Brazil, reaffirm the reasonableness of David's position that dismissal of all litigation in Brazil is a non-negotiable condition before any visitation will be permitted.”

Further, Judge Guadagno found that it had not been established by the Ribeiros that denying them visitation with Sean would wreak a particular identifiable harm, specific to Sean significant enough to justify interference with David's fundamental due process right to raise his child free from judicial interference and supervision. On the contrary, David has established that a grant of the type of unconditional visitation the Ribeiros seek “will likely allow them to continue their efforts to undermine and destabilize his relationship with his son and further traumatize the child with suggestions that he may again be separated from his father and returned to Brazil.”

Judge Guadagno dismissed the complaint of the grandparents, noting that they “continue to hold the keys to the portal of visitation with their grandson. Compliance with the fair and reasonable conditions established by David will allow them to again enjoy the special relationship recognized by the legislature when it enacted the GVS.”

New Jersey, like Michigan has a court rule under which counsel fees may be awarded in a family court matter. The Court reserved the request for counsel fees, and directed David’s counsel to provide a complete certification of services and may submit proposed findings addressing the relevant factors including: (1) David’s financial need; (2) the financial ability of the Ribeiros to pay counsel fees; and (3) David’s good faith in defending the action or whether the Ribeiros have acted in bad faith.

Judge Guadagno's entire opinion may be read here.