Case Update (22 February 2024): Pereira v. Gunter; Mother’s removal of children from Brazil by court order is not wrongful

This case has been ongoing since 2016, with an extensive history of litigation in 2 countries and 2 U.S. states. You can find the initial blog post from 2020 on this case here. In this case, Dr. Pereira and Ms. Gunter resided in Brazil from 2011-2016 as a married couple. They had one child in Brazil. While pregnant with their 2nd child, the couple moved to Florida for a short-term medical fellowship for Dr. Pereira, which fell through quickly. Their 2nd child was born in Florida, and shortly thereafter, Dr. Pereira moved back to Brazil, apparently expecting Ms. Gunter and the children to follow. But, they did not. The current case is pending before the U.S. District Court for the MD of Alabama. But, the case started in Brazil and Florida. Ms. Gunter filed for divorce in 2016 in Brazil, in a case where ultimately, at the time of the divorce decree in 2017, the Brazilian court concluded it had no jurisdiction over the children’s custody. Dr. Pereira filed an application for return of the children under the Hague Abduction Convention with the Brazilian Central Authority, which denied the application. Dr. Pereira, as is his right, proceeded to file a petition to return the children under the Abduction Convention in the 9th Judicial Circuit in Florida, which was denied in 2017. By then, Ms. Gunter and her new husband, who was in the U.S. military, had moved elsewhere in Florida, so Dr. Pereira re-filed the Hague petition, amending it, in the 4th Judicial Circuit in Florida, and, ultimately, in 2020, the court granted his request to have the 2 children returned to Brazil (including the one child who was born in Florida and had never stepped foot in Brazil). Ms. Gunter was unsuccessful in her appeals, so she ultimately returned the 2 children in February 2021, and, upon landing in Brazil, was required to turn over the children’s passports. Further litigation ensued in Brazil, including further court orders that said Brazilian courts had no jurisdiction to resolve custody. In December 2021, the Brazilian courts ordered that Ms. Gunter could retrieve the passports and return to the United States with the children, which she did on January 12, 2022, one day after Dr. Pereira apparently obtained an ex parte order prohibiting her from removing the children, which she did not learn of until about a week later, while in the U.S. There were ongoing appeals of that order, which ultimately Ms. Gunter won. By now, Ms. Gunter, the children and her new husband were residing in Alabama, so Dr. Pereira filed a case in the U.S. District Court in Alabama, which is the case here. He sought the return of the children to Brazil, including enforcement of the Florida order that mandated the children’s return to brazil (from 2020). In August 2023, Dr. Pereira also filed another case in Brazil to seek legal cooperation/assistance in repatriating the children to Brazil, using the Florida court order. Ms. Gunter successfully challenged an order in that case, and Dr. Pereira’s appeal is pending.

Before the Alabama court is Dr. Pereira’s petition, and Ms. Gunter’s motions to dismiss and for summary judgment. The court proceeded without a hearing. The court examined whether Ms. Gunter’s removal of the parties’ minor children from Brazil on or about January 12, 2022 was wrongful within the meaning of the Hague Abduction Convention. Even though Ms. Gunter technically violated the ex parte order that Dr. Pereira had obtained, without her knowledge, the day prior to her removing the children from Brazil, the Brazilian courts ultimately did not view that violation to have violated Brazilian law, or the Father’s parental or custody rights, stating directly in its subsequent order that the order that permitted the mother’s removal of the children from Brazil included access between Father and children and “protected Pereira’s rights of access…” Assuming that Brazil is the children’s habitual residence, the Alabama court is required to look at Brazilian law and judicial decisions in determining whether Pereira’s custody rights were violated. The Alabama court should not be placed in a position to resurrect and retroactively reinstate the ex parte order, particularly when the Brazilian appellate courts “have twice declined the same request on grounds that Gunter did not violate [Dr. Pereira’s] parental rights or the Hague Convention when she left Brazil with the children in January 2022.” Further, Ms. Gunter’s return of the children to the United States in January 2022 did not violate the prior 2020 order from Florida mandating Ms. Gunter return the children to Brazil. She adhered to that 2020 return order, and only returned back to the United States after a subsequent Brazilian order permitted her to do so. Even though the Florida order determined Brazil was the children’s habitual residence, and therefore had “jurisdiction to determine custody”, this did not so require Brazil, under its own laws, to assume jurisdiction over the issue of custody. Ms. Gunter is entitled to summary judgment.