Filing a Hague Convention Return Petition in Brazil

What a Hague return petition is, and what it is not

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is in force in Brazil through Decreto 3.413/2000. Its purpose is narrow and mechanical: when a child under 16 is removed from the country of habitual residence, or kept in another country beyond an agreed period, in breach of someone’s rights of custody, the child should be returned promptly so that the courts of the habitual residence can decide any custody dispute (Articles 1, 3, 4 and 12).

A return petition is therefore not a custody case. Article 19 states that a return decision is not a determination on the merits of custody. The Brazilian federal judge who hears the petition is being asked one question: was the removal or retention wrongful, and does any of the Convention’s exceptions apply? Who the better parent is, where the child will go to school, or how time will be shared are questions for the court of the habitual residence after the return.

Parents on both sides of these cases regularly misunderstand this. Left-behind parents sometimes believe they need a custody order before they can apply; they do not, because custody rights can arise by operation of law (Article 3). Taking parents sometimes believe that proving they are the primary carer will keep the child in Brazil; on its own, it will not. Keeping the case inside the Convention’s frame is most of the strategy.

“The Convention is a jurisdictional reset, not a custody decision. Every week spent arguing about who is the better parent in the return case is a week the court is not spending on the only question it is allowed to answer.” — Zachariah Zagol, Founding Partner, OAB/SP 351.356

This page explains the Brazilian route in practical order: who files, how the Central Authority intake works, what the AGU does, how the federal court proceeds, the provisional measures available, the defences you should expect, realistic timelines, and what a left-behind parent should do in the first 72 hours. It applies to children taken to Brazil. If a child was taken from Brazil to another Convention country, the mirror process starts at ACAF as the requesting authority, and the Brazilian side of the file is prepared the same way.

For the broader custody picture in Brazil, including habitual residence and STJ jurisprudence, see our cross-border custody page. For the divorce that often surrounds these cases, see binational divorce in Brazil.

The dates that decide the case

Four dates and periods do most of the work in a Convention case. They are in the treaty text, not in practice notes, and getting them wrong is how a viable case becomes a custody fight.

Two further dates go in the file on day one: the date on which the removal or retention became wrongful — for a retention, usually the date the child was due back — and the date the application reached the Central Authority or the court. Everything above is measured from those two.

Who can file

Article 8 allows “any person, institution or other body claiming that a child has been removed or retained in breach of custody rights” to apply. In practice:

• A parent with custody rights under the law of the child’s habitual residence. Joint custody by operation of law is enough. A right to be consulted on, or to veto, the child’s move abroad (a ne exeat right) has been treated by many Convention courts as a right of custody for this purpose.
• A guardian or a public body holding custody rights, for example a child-protection agency that had legal custody.
• A parent with access rights only cannot use the return mechanism, but can invoke Article 21 to organise or secure the effective exercise of access through the Central Authority.

The child must have been under 16 at the time of removal or retention and must remain under 16 for the Convention to apply (Article 4). The child’s and the parents’ nationality is not the test; habitual residence is.

Two facts need to be true on the date of removal or retention: the applicant held custody rights under the law of the habitual residence, and those rights were actually being exercised, or would have been but for the removal (Article 3). Evidence of both belongs in the file from the beginning.

The Central Authority route: ACAF intake

Brazil’s Central Authority under the Convention is the Autoridade Central Administrativa Federal (ACAF), a unit of the Ministry of Justice and Public Security (MJSP) in Brasília. Its duties are those of Article 7: locate the child, prevent further harm, try to secure a voluntary return or an amicable resolution, exchange information on the child’s social background, provide information on Brazilian law, initiate or facilitate judicial proceedings, and arrange for legal assistance where needed.

Where the application starts

Under Article 8 the applicant may apply to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State, including Brazil’s. Most parents begin with their home authority because it reviews the application for completeness, helps with the required translations and transmits the file to ACAF through official channels. Applying directly to ACAF is possible and can be faster when the applicant already has the documents in Portuguese and a Brazilian attorney ready.

What the application must contain

Article 8 lists the minimum content:

1. Identity of the applicant, of the child and of the person alleged to have removed or retained the child.
2. The child’s date of birth, where available.
3. The grounds on which the applicant claims the child should be returned, which means an explanation of the custody rights and the habitual residence.
4. All available information on the child’s whereabouts and the identity of the person the child is presumed to be with.

The application may be accompanied by an authenticated copy of any relevant decision or agreement, a certificate or affidavit from the Central Authority or another qualified person concerning the law of the habitual residence (Article 8, and the Article 15 declaration of wrongfulness where the court in Brazil requests it), and any other relevant document.

Every document must be in Portuguese, translated by a sworn translator — and this is not a matter of practice but of a formal reservation Brazil made. Article 24 of the Convention would ordinarily allow a translation into the requested State’s official language or, where that is difficult, into French or English. Brazil acceded with a reservation to Article 24, permitted by Article 42, expressly “para determinar que os documentos estrangeiros juntados aos autos judiciais sejam acompanhados de tradução para o português, feita por tradutor juramentado oficial” (Decreto 3.413/2000). An English-only file, or one translated by a competent but unsworn translator, will not do. Budget the translation time into the plan: it is one of the few parts of the process that cannot be accelerated by urgency.

What ACAF does with the file

Once the file is accepted, ACAF typically:

• Locates the child. ACAF can request assistance from the Polícia Federal and, through it, from state police, using the applicant’s address information as the starting point. If the address is unknown, this stage can stretch.
• Contacts the taking parent in writing, explaining the Convention and inviting a voluntary return (Article 10). This is a genuine attempt at amicable resolution, not a formality, and a number of cases end here with a negotiated return or an agreed relocation plan.
• Collects Brazilian-side information, including whether any custody or protective proceeding has already been filed in a state court.
• Forwards the case to the AGU if voluntary return is refused or the taking parent does not respond, together with a technical analysis of whether the removal appears wrongful under the Convention.

ACAF cannot order anything. It has no power to seize the child, to prohibit travel or to compel the taking parent to attend a meeting. That is why the judicial stage exists, and why provisional measures come from the court, not from ACAF.

The AGU and the federal court

Why the case is federal

The Brazilian Constitution assigns cases founded on a treaty between the Union and a foreign State to federal judges (Article 109, III). Hague return actions are therefore filed in the Justiça Federal, in the judicial section where the child is located, rather than in the state family courts (Varas de Família) that decide domestic custody.

Because the Union is the party bound by the treaty, the action is normally brought by the Advocacia-Geral da União (AGU), the federal attorney general’s office, in the name of the Union. The action is usually styled as a busca, apreensão e restituição of the minor: the court is asked to determine that the removal was wrongful and to order the child’s return, with the necessary search and delivery measures. The left-behind parent is the beneficiary of the case rather than its formal plaintiff, unless he or she files directly.

The direct-filing alternative (Article 29)

Article 29 preserves the applicant’s right to apply directly to the judicial authorities of the requested State, whether or not the Central Authority route is used. A left-behind parent with private Brazilian counsel can therefore file the return action directly in federal court, or join the AGU’s action as an interested party. Direct filing avoids waiting for the administrative stage but requires the applicant to assemble the full evidentiary file, including the sworn translations, on his or her own.

In practice a combined approach is common: the application goes to ACAF so the official machinery starts, and private counsel prepares the evidence, requests provisional measures and monitors any state-court proceeding in parallel. AGU attorneys carry many files and act for the Union; they do not represent the parent individually or manage the parent’s overall situation.

What the federal judge examines

The judge’s analysis follows the Convention’s structure:

1. Was the child habitually resident in the requesting State immediately before the removal or retention? This is a factual inquiry about the child’s life, not a legal domicile test: school, healthcare, family, duration and stability of the stay, and the parents’ shared intentions.
2. Did the applicant hold rights of custody under the law of that State, and were they being exercised?
3. Was the removal or retention in breach of those rights (Article 3)?
4. Does any exception apply (Articles 12, 13 and 20)?

If the answers to 1 to 3 are yes and no exception is established, return is the rule (Article 12). The judge does not evaluate which parent should have custody, and Article 17 states that a custody decision already issued in Brazil is not by itself a ground for refusing return, although the court may take its reasons into account.

Procedure and appeals

The taking parent is summoned and files a defence. The court commonly orders a psychosocial assessment by the court’s technical team, and may hear the child in a manner appropriate to age. The Ministério Público Federal issues an opinion, as it does in matters involving minors. The judge then decides. Appeals go to the Tribunal Regional Federal (TRF) for the region, and disputes over federal law or treaty interpretation can reach the Superior Tribunal de Justiça (STJ). The way Brazil applies Article 13 in particular has been the subject of constitutional litigation before the Supremo Tribunal Federal — the official text of the decree on Planalto carries a “Vide ADI 4245” note against that article — so a defence built on Article 13 may draw on argument at that level. Counsel should check the current state of that case rather than assume it.

The Convention sets its own tempo, and that tempo is itself a procedural argument. Article 11 obliges judicial and administrative authorities to “adotar medidas de urgência com vistas ao retorno da criança”, and provides that where no decision has been taken within six weeks of the application reaching the authority, the applicant or the Central Authority may demand a statement of the reasons for the delay. That six-week benchmark is not a limitation period and missing it does not end the case, but it is a written treaty standard that counsel can put in front of the judge, and the request for a statement of reasons is a formal step, not a complaint. Article 16 adds a second lever: once the Brazilian court has been informed of the wrongful removal or retention, it may not decide the merits of custody until it has been determined that the conditions for return are not met, or a reasonable period has passed without a Convention application. The practical effect varies by judicial section, and part of counsel’s job is to request the priority the treaty contemplates.

Provisional measures available

Article 7(b) obliges Central Authorities to take or cause to be taken provisional measures to prevent further harm to the child or prejudice to interested parties. In Brazil, those measures come from the federal judge under the general urgent-relief rules of the Code of Civil Procedure (CPC Article 300 and following), on request by AGU or by private counsel. Depending on the facts, a court may order:

• A prohibition on the child leaving Brazil, communicated to the Polícia Federal so that airports and land borders flag the child, with retention of Brazilian and foreign passports.
• A prohibition on issuing new travel documents for the child.
• Location and welfare checks, including an order that the taking parent inform the court of the child’s address and school.
• Interim contact between the left-behind parent and the child, in person or by video, so that the relationship is not severed during the case.
• A search-and-delivery order (busca e apreensão) once return is decided, or earlier where there is a concrete risk of the child being hidden or moved onward.

These measures are granted on evidence of risk, so the file should include anything that shows the taking parent has moved before, has threatened to move again, has relatives in a third country or has stopped responding.

Brazilian domestic law also matters here. Under the Statute of the Child and Adolescent (ECA, Articles 83 to 85) a minor leaving Brazil needs the authorisation of both parents or a court order, and the Polícia Federal enforces that at exit points. A court order recording the return case gives that check teeth.

The defences you should expect

The taking parent will almost always raise one or more Convention exceptions. Knowing them in advance shapes the evidence the applicant gathers.

Article 12: more than one year and settled

This defence only exists after the one-year mark. Where proceedings begin within a year of the wrongful removal or retention, Article 12’s first paragraph directs the authority to order the child’s immediate return, and settlement in Brazil is not an answer. After a year, the second paragraph still directs return “salvo quando for provado que a criança já se encontra integrada no seu novo meio” — so the taking parent has to prove integration, and mere passage of time is not proof of it. Two dates therefore decide whether this defence is even on the table: the date the removal or retention became wrongful (for a retention, usually the date the child should have come back) and the date the application reached ACAF or the court. Keep documentary proof of both.

Article 13(a): not exercising custody, consent or acquiescence

The taking parent may argue that the applicant had abandoned the child’s care, consented to the move in advance or accepted it afterwards. Messages, emails and social-media posts are routinely produced on this point in both directions. A parent who wrote “fine, stay there” in anger should expect to see that message again; a parent who kept paying school fees abroad and visiting has evidence of exercising custody.

Article 13(b): grave risk of harm or intolerable situation

This is the most frequently argued and the most heavily litigated exception. The threshold is high: a grave risk of physical or psychological harm, or an otherwise intolerable situation, on return. Allegations of domestic violence, substance abuse or unsafe conditions in the requesting country are examined seriously, and the court’s psychosocial team is usually involved. Brazilian courts, following international practice, have also considered whether protective measures available in the requesting State can address the risk so that return remains possible. Detailed and documented evidence, rather than general assertion, is what moves this analysis.

The child’s objection

Article 13 also allows a court to refuse return if the child objects and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. The weight given to the objection increases with age and maturity, and courts are alert to objections that mirror a parent’s script rather than the child’s own reasoning.

Article 20: fundamental principles

Return may be refused if it would not be permitted by the fundamental principles of Brazil relating to the protection of human rights and fundamental freedoms. It is rarely the decisive ground.

What is not a defence

That the taking parent is the primary carer, that the child is now well cared for in Brazil, that the taking parent is a Brazilian citizen, or that a Brazilian family court has since issued a custody order are not, on their own, grounds for refusing return. They may be relevant to the exceptions above but do not replace them.

Timelines in practice

The Convention’s six-week aspiration (Article 11) is not met in Brazil, or in most Contracting States, when a case is contested. Without promising any duration, the sequence usually looks like this:

Cases that settle at the ACAF stage or in mediation end far sooner. Contested cases with appeals commonly run beyond a year. The single largest controllable factor on the applicant’s side is how complete the file is on day one.

First 72 hours: a checklist for the left-behind parent

The first days after discovering that a child has been taken to Brazil, or kept there past an agreed return date, set up the entire case. None of these steps requires a decision on strategy; they preserve options.

Establish the facts and the date

1. Write down, with times, when the child left, when the child was supposed to return, and when you learned the return would not happen. That date drives the Article 12 one-year clock.
2. Save the travel consent you signed, if any, and its exact terms: dates, purpose, return flight. A consent for a holiday is not a consent to relocate.
3. Save all messages with the other parent from before and after the travel, without editing or deleting anything.

Preserve evidence of habitual residence and custody rights

4. Gather the child’s school enrolment and attendance records, paediatrician records, extracurricular registrations and lease or property documents showing where the family lived.
5. Locate the birth certificate, any custody order, parenting agreement or court filing, and your marriage or divorce documents.
6. If custody rights arise by operation of law in your country, ask a local attorney for a short written statement of that law; the Brazilian court may later request an Article 15 declaration and this will speed it.

Start the official channels

7. Contact the Central Authority of the child’s habitual residence and open a case. Ask for the application form and the list of documents it will transmit.
8. Consider a police report in the home country recording the unauthorised removal or retention; it documents the date and your lack of consent.
9. If there is an immediate risk that the child will be moved onward from Brazil, tell the Central Authority and your Brazilian counsel so that a travel-prohibition request can be prepared for the federal court.

Communicate carefully

10. Keep communication with the other parent factual and courteous. Do not write anything that could later be read as consent or acquiescence, and do not threaten. Ask, in writing, for the child’s address and for the child to return by a specific date.
11. Maintain contact with the child by phone or video where possible, and keep a log of calls made and answered or refused.
12. Do not attempt to retrieve the child yourself. Self-help removal from Brazil can expose you to criminal liability in Brazil and undermines the return case.

Engage Brazilian counsel

13. Speak with an attorney admitted to the OAB who handles Convention cases, so that the Brazilian side (federal court, any state custody case, provisional measures) is covered from the start rather than after the administrative stage.

Documents to gather

Every case is different, but the following set covers most return applications:

• Child’s birth certificate, with apostille and sworn Portuguese translation.
• Applicant’s identity document and proof of address.
• Marriage certificate or proof of the parents’ relationship; divorce decree if applicable.
• Any custody order, parenting plan, separation agreement or court decision touching custody or the child’s residence, apostilled and translated.
• Evidence of the law of the habitual residence on custody rights (statutory text, attorney’s statement, or Central Authority certificate).
• Evidence of habitual residence: school records, medical records, lease, employment, tax residence.
• Travel documentation: the consent given for the trip, tickets, the agreed return date.
• Communications showing the applicant’s lack of consent and the other parent’s intention to stay.
• Recent photographs of the child and of the taking parent, for location purposes.
• Any information on the child’s whereabouts in Brazil: addresses, relatives, school, employer of the taking parent.
• A power of attorney in favour of Brazilian counsel, signed before a notary and apostilled, or at a Brazilian consulate, so that the attorney can act without waiting for the applicant to travel. See our guide to powers of attorney in Brazil.

Documents issued in a Hague Apostille Convention country need an apostille rather than consular legalisation; Brazil has been part of that convention since 2016 (Decreto 8.660/2015). Translations must be by a sworn translator (tradutor público) to be accepted by Brazilian courts and registries. Our apostille and document legalisation and sworn versus regular translation pages cover the mechanics.

How a Brazilian attorney complements the Central Authority route

The Central Authority and the AGU are free to the applicant, and they carry the treaty obligation. A private attorney does the things they are not designed to do:

• Prepares the evidence on habitual residence and custody rights to the standard a Brazilian federal judge expects, in Portuguese, before the AGU files.
• Files directly under Article 29 or joins the AGU’s action, so that the applicant has standing to request measures and to appeal in his or her own name.
• Requests provisional measures (exit prohibition, passport retention, interim contact) with the evidence to support them.
• Monitors the state family court. Taking parents frequently file a custody, protective or domestic-violence proceeding in a Vara de Família shortly after arrival. Counsel informs that court of the Hague case (Article 16), responds to any interim orders and prevents a custody decision from being issued that later complicates return.
• Coordinates with the applicant’s home attorney, so that undertakings, mirror orders or protective measures offered to address an Article 13(b) argument are real and enforceable in the requesting State.
• Handles the Article 21 access dimension, including interim contact, which the AGU’s return action does not always cover.
• Explains the process in English and keeps the parent informed in a case where distance and language would otherwise leave him or her reading court documents through machine translation.

Our practice is limited to Brazil. We do not advise on the law of the requesting State, and in every case we work with the parent’s counsel abroad on the parts of the strategy that belong to that jurisdiction.

After the decision

If return is ordered, the judgment sets how and when the child travels, who accompanies the child, and what happens to the passports. The taking parent may appeal to the TRF; whether the return is carried out pending appeal depends on the court. If return is refused, the applicant may appeal, and the custody question moves, in principle, to the Brazilian courts, since the child remains in Brazil. Either way, the parent’s relationship with the child is shaped by what was done during the case: interim contact preserved, communication kept civil, and the child kept out of the adult dispute as far as possible.

Related pages

• Cross-border custody and the Hague Convention in Brazil: habitual residence, STJ jurisprudence, travel consent rules.
• Binational divorce in Brazil: jurisdiction, property and custody when a marriage spans two countries.
• Choosing a lawyer for an international child custody matter.
• Enforcing child support when the other parent is in Brazil.
• Recognition of a foreign divorce in Brazil: usually needed alongside, since a foreign custody or divorce decree has no effect in Brazil until it is recognised.
• Cross-border family law landing page: custody and abduction · divorce · child support.

Sources

• 1980 Hague Convention on the Civil Aspects of International Child Abduction — HCCH official text and status table
• Decreto 3.413/2000 — promulgation in Brazil, with the reservation to Article 24 permitted by Article 42; in force for Brazil since 1 January 2000 (Decreto Legislativo 79/1999)
• Convention articles relied on here: 3 (wrongfulness), 4 (scope and the age of 16), 8 (contents of the application), 11 (urgency and the six-week statement of reasons), 12 (the one-year rule), 13 (exceptions), 16 (no custody decision pending), 19 (return is not a custody determination), 21 (access), 24 and 42 (language and reservations), 26 (costs)
• Ministério da Justiça e Segurança Pública — Autoridade Central Administrativa Federal (ACAF)

This page is general information about Brazilian law and procedure. It is not legal advice for any specific situation and does not create an attorney-client relationship. Convention cases turn on their facts and on the evidence available; nothing here should be read as a prediction of how a court will decide.

ZS Advogados Associados · Zachariah Zagol, OAB/SP 351.356 · Presidente Prudente, SP · zac@zsassociados.com · +55 (18) 3908-1653