International Parental Child Abduction Brazil
DISCLAIMER: This flyer is for general information purposes. This information is subject to change without notice and should not be
construed as legal advice. Please seek qualified foreign legal counsel for specific information about foreign law.
JUNE 2012
Brazil and the United States have been treaty partners under the Hague Convention on the Civil Aspects of Child Abduction (Hague Abduction Convention) since December 1, 2003.
For information concerning travel to Brazil, including information about the location of the U.S. Embassy, health conditions,
currency and entry regulations, and crime and security, please see country-specific information for Brazil at: http://travel.state.gov/travel/cis_pa_tw/cis/cis_1072.html
LEGAL SYSTEM:
Brazil is organized as a federal republic with a civil law system. The Federal Union and the states have their own, separate court systems, which follow the same civil procedure. There is no jury system used in civil cases in Brazil; a judge, or a panel of judges, hear the case and make a decision. Local family courts handle divorce and custody cases. Access rights to children are called visitation rights, as in the United States. In Brazil, custody orders are called decisões de guarda, which can be translated as “decisions about legal guardianship.” In Brazil, married parents have a guarda compartilhada, or the right to shared or joint custody. This parental right only ceases to exist by death or judicial order. When a child is born out of wedlock, the mother has guarda compartilhada, or sole legal guardianship, under Brazilian law, absent a court order that states otherwise
RETAINING AN ATTORNEY:
Please note that in Hague abduction cases submitted through the Brazilian Central Authority (BCA), the Solicitor General of the Union (also known as the Attorney General’s Office, or AGU) will act as the legal representative of the state of Brazil on behalf of Hague applications, because Brazilian law considers Hague abduction cases to be public cases. The cases will be filed by the AGU with a federal court. The BCA will continue to provide assistance throughout the process and assist in enforcing an order for return under the Convention.
However, a parent may also initiate a private case by presenting a Hague Abduction Convention application directly to the Brazilian federal court system through an attorney that he or she has privately retained. Please note that the BCA does not assist in the enforcement of the orders in privately filed cases. Additionally, the BCA does not monitor the progress within the judicial system of a privately filed case. Therefore, the parent will need to rely on the private attorney for updates on case status if he or she chooses this option.
The Brazilian Bar Association and the Brazil’s Defensoria Publica Da Uniao (Public Defender’s Office) offer free legal assistance for any type of legal proceeding to those who demonstrate financial need. For additional information, please contact the Brazilian Bar Association, Sao Paulo Section, Legal Assistance Committee at: assistencia.judiciaria@oabsp.org.br.
The U.S. Embassy in Brasilia posts a list of attorneys, including those who specialize in family law, at http://brazil.usembassy.gov/lawyers.html.
This list is provided as a courtesy service only and does not constitute an endorsement of any individual attorney. The Department of State assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by, the following persons or firms. Professional credentials and areas of expertise are provided directly by the lawyers.
CITIZENSHIP & PASSPORT MATTERS:
If either of a child's parents is a Brazilian citizen, then the child is a Brazilian citizen, regardless of place of birth or any other citizenship that the child may possess. Children born in the United States may travel to Brazil on a U.S. passport and be documented as Brazilian citizens upon arrival in Brazil. It is also possible for children born in the United States to be registered and documented as Brazilian citizens by a Brazilian Consulate in the United States, allowing the Brazilian Consulate to issue the child a Brazilian passport to travel to Brazil. All children born in Brazil, except those born to people on the diplomatic blue list, are Brazilian citizens.
Brazil recognizes dual citizenship. However, all Brazilian citizens must enter and exit Brazil on a Brazilian passport. Brazil does not allow children to enter on a parent's passport. A Brazilian child can travel internally in Brazil on their national identification card and without a passport, but an authorization signed by both parents or a judicial authorization is required for internal travel by minors.
Additionally, both parents' consent is necessary for the issuance of a Brazilian passport. A passport can be issued at the request of only one parent if that parent can demonstrate that he or she is the sole legal guardian of the child.
There is a formal process by which a parent may request that a Brazilian passport not be issued to his or her child. To initiate this process, the parent must petition a family court in Brazil and provide an explanation of why the passport should not be issued to the child. If a passport has already been issued, the parent may request that a judge take possession of the passport and not release the passport to either parent. Please note that when a judge receives an application for the return of a child under the Hague Abduction Convention, the court seizes the travel documents of both the child and the parent in Brazil and retains the documents until a final decision is made in the case.
The Brazilian Federal Police, responsible for immigration decisions in Brazil, have the authority to seize travel documents,
including foreign passports, if they have reason to believe that they are being used in criminal activity.
Exit Permits:
Under Brazilian law, neither parent, regardless of marital status, may travel alone with a child without either the written consent of the absent parent or a court order that grants the traveling parent either sole custody or permission to travel with the child. This applies to both domestic and international travel.
Mediation is strongly encouraged by Brazilian judges during judicial procedures. In Hague Abduction Convention cases, the Brazilian Central Authority always promotes mediation between parents before sending the case to the courts and can schedule a formal "conciliation hearing" with a court to work out and formalize a mediated agreement. There are no NGOs or non-profit organizations that mediate between parents in custody cases in Brazil.
HAGUE ABDUCTION CONVENTION:
The Hague Abduction Convention is the primary civil law mechanism for parents seeking the return of or access to children wrongfully removed to other treaty partner countries. It came into force between the United States and Brazil on December 1, 2003.
Countries party to the Convention have agreed that a child who was living in one Convention country, and who has been removed to or retained in another Convention country in violation of the left-behind parent's custodial rights, shall be promptly returned, with very limited exceptions as outlined in the text of the Convention. Once a child has been returned to his or her country of habitual residence, the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. The Convention does not address who should have custody of the child; it addresses where the custody case should be heard.
Under the Convention, each treaty partner must establish a Central Authority whose purpose is to carry out the obligations and functions of the Convention through cooperation with corresponding Central Authorities.
The Brazilian Central Authority is located in the Special Secretariat for Human Rights. Contact information and website addresses for this office is:
Secretaria de Estado dos Direitos Humanos
SCSB - Quadra 9, Cj. C
Centro Empresarial Parque Cidade, Torre A, 8 andar, Sala 805ª
70308-200 - Brasilia/DF
Telephone/Fax: +55-61-2025-3481 and 2025-3975
Website: http://www.direitoshumanos.gov.br/aut_centr
Brazil has been cited in the annual U.S. Compliance Report on the Hague Abduction Convention, most recently in 2011: http://www.travel.state.gov/pdf/2011HagueComplianceReport.pdf
To initiate a Hague case for the return of or access to a child in Brazil, the left-behind parent must submit a Hague application to the Brazilian Central Authority.
As described below, applications may be submitted to the Brazilian Central Authority via the U.S. Central Authority (USCA). Parents or legal guardians may contact the USCA, the Department of State's Office of Children's Issues with questions about the Hague Abduction Convention application at:
United States Department of State
Bureau of Consular Affairs
Office of Children's Issues
2201 C Street, N.W.
Washington, DC 20520
Telephone: 1-888-407-4747
Outside the United States or Canada: 1-202-501-4444
Fax: 202-736-9132
Website: http://travel.state.gov/abduction/abduction_580.html
When complete, the USCA will submit the application to the Brazilian Central Authority. Because the Hague Abduction Convention process centers around the cooperation of central authorities, it is advisable, though not required, for parents or legal guardians to submit their cases to the foreign central authority through the USCA. There are no fees for filing Hague applications with either the U.S. or Brazilian Central Authorities. If a parent chooses to pursue a private case, attorney fees are the parent's own responsibility (see information on legal assistance under "Retaining an Attorney" above) and the Brazilian Central Authority will not be able to assist the parent with updates on the private legal case.
When the Brazilian Central Authority receives a Hague application, it will examine the application with the Attorney General's Office (AGU), which determines whether they will accept the case. Once the application is accepted, the Central Authority, with the aid of Interpol, attempts to locate the child. Once the location of the child and alleged taking parent are known, the Brazilian Central Authority will attempt to mediate an agreement between the parents. If an agreement is not reached, the AGU will file the case with a federal court.
There is not a fixed timeframe for a Hague application to be assigned to a federal judge. However, according to the Brazilian Civil Procedure Code, legal petitions must be assigned immediately to Brazilian judges. When a Hague application is successfully filed in federal court, the court notifies the parent in Brazil and summons his or her attorney to contest the petition. The AGU, acting on behalf of the Brazilian government, then has an opportunity to respond to the parent's arguments. After both parties have been heard, the judge submits the case for examination to a representative of the Ministerio Publico, the body responsible for presenting a formal opinion to the court in all cases involving minors. In Hague Abduction Convention cases, the representative of the Ministerio Publico will submit a report either for or against the return of the child. In federal cases, the representative will be a Procurador da Republica (Public Prosecutor). If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor). The judge has complete independence to rule on the case and does not have to follow the Ministerio Publico's recommendation in his or her decision. At this stage, the judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority; other parties, including parents, may participate at the discretion of the judge. There is no time limit under Brazilian law for a decision to be issued in the case.
The decision of the federal judge can be appealed to a higher court, the Tribunal Regional Federal. The Tribunal consists of at least seven high judges (desembargadores), with one desembargador acting as the petitioner and the others examining the case and presenting their positions on the case. The desembargadores then vote on a decision in the case. The decision of the Tribunal can only be overruled by the Supreme Federal Court.
Hague Application Instructions
A parent or legal guardian may contact the USCA for information regarding the procedures involved in applying for assistance under the Hague Abduction Convention in Brazil.
The application consists of the following required items:
1) The Hague Abduction Convention application form, available from the USCA, or available on the following website: http://travel.state.gov/abduction/abduction_580.html2) Originals or certified copies of the child/ren's birth certificate(s), the marriage certificate and/or divorce decree, as applicable.
3) A copy of the state custody statute of the U.S. state of the child's habitual residence.
4) A certified copy of any custody order in effect when the child was taken to Brazil, or a copy of the state law that establishes the applicant's right to custody, and any agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Abduction Convention. If no custody order exists, and the applicable state's statutes are silent as to a parent's right of custody, an affidavit of law from an U.S. attorney may be acceptable.
5) Photos of the child and of the taking parent. These photos will not be returned.
6) Translation into Brazilian Portuguese for all documents in English, including the Hague application form, birth/marriage certificates and court documents. Translations do not have to be certified.
Special requirements: All application materials should be either typed or legibly written in either blue or black ink.
Parents seeking the recognition of U.S. custody orders will need to hire a private attorney, who can initiate a process called homologation, which consists of registering a U.S. court order in Brazil. The process is very lengthy and ultimately must be upheld by a Brazilian court. Divorce and custody cases can take a great deal of time to process through the courts.
Custody decisions are made "in the best interests of the child," which considers which parent can best care for the child and which parent is best able to provide the child with the opportunity to visit the non-custodial parent.
Brazil's 2002 Civil Code governs custody issues (See Article 1.584):
http://www.planalto.gov.br/ccivil_03/LEIS/2002/L10406.htm
Under Brazilian law, parental abduction is a crime when committed within Brazil and both parents are Brazilian. An international parental abduction, involving a Brazilian parent taking a child to Brazil in interference with a foreign parent's custodial rights, is not considered a crime.
The Brazilian Constitution prohibits the extradition of its own nationals, preventing a taking parent of Brazilian nationality from being extradited for parental abduction.
Brazil's applicable laws can be found at: http://www.planalto.gov.br/ccivil_03/LEIS/2002/L10406.htm
Brazilian courts may grant visitation rights to parents residing outside of the country. The specifics of visitation are determined by a divorce decree or custody order. Parents seeking to enforce visitation rights already granted by a foreign or Brazilian court order may do so directly with a Brazilian court or through the Hague Convention. Either federal or state courts determine visitation and access rights for cases brought under the Hague Abduction Convention. Only state courts determine visitation and access rights in cases brought under Brazilian domestic laws.. In general, parents always have the right to visit the child if the court determines that a visit is appropriate and that the child will not be put in danger during such a visit. In Brazil, this is considered a right of the child, so there must be a serious reason for a parent not to be allowed to visit the child. In cases where a child or parent's right for visitation or access is not being granted, a judge can require the help of the police to enforce his/her order regarding these rights.
Links to Brazil's applicable laws on visitation and access rights:
http://www.planalto.gov.br/ccivil_03/Leis/L8069.htm
The U.S. Embassy in Brasilia can be contacted at:
U.S. Embassy Brasilia
SES - Av. das Nações, Quadra 801, Lote 03
70403-900 - Brasília, DF
Telephone: + (61) 3312-7000
Fax: +(61) 3312-7651
E-mail: BrasiliaACS@state.gov
Website (includes contact information for all U.S. consulates in Brazil): http://brazil.usembassy.gov
The Embassy of Brazil is located in Washington, D.C. at:
Embassy of Brazil
Consular Services
1030 15th Street, NW
Washington D.C., DC 20005
Telephone: (202) 461-3000
E-mail: consular@consbrasdc.org
Website: http://www.brasilemb.org/
The Central Authority of Brazil is located at:
Secretaria de Estado dos Direitos Humanos
Esplanada dos Ministerios, Edificio Sede, sala 212 70064-900 Brasilia
Telephone: +55-61-3-429-3481
Fax: +55-61-3-226-7980
Website: http://www.direitoshumanos.gov.br/aut_centr
The United States Central Authority can be reached at:
United States Department of State
Bureau of Consular Affairs
Office of Children's Issues
2201 C Street, N.W.
Washington, DC 20520
Telephone: 1-888-407-4747
Outside the United States or Canada: 1-202-501-4444
Fax: 202-736-9132
Website: http://travel.state.gov/abduction/abduction_580.html
Other Government Websites |
