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Choices of the heart | Second of three parts

Torn by distance, he wonders how far to take custody fight

Email|Print| Text size + By Patricia Wen
Globe Staff / September 24, 2007

CAMBRIDGE - After dinner almost every night, John McHugh calls his 7-year-old daughter, who lives 5,000 miles away in Brazil with her mother. He hopes his anger over his situation, a failed marriage that has left him alone with the family dog, does not come through to his bright little girl.

Before calling Chiara, McHugh often sets up his clarinet to play "Close To You," the Carpenters' song from the '70s that his daughter loves and knows by heart. He thinks up stories about birds, raccoons, or ducks. Girls that age, McHugh has been told, like to deal in the concrete.

If it's a good night, the 47-year-old software engineer keeps his only child on the phone for an hour.

McHugh is trying to decide how far to take a legal fight to get his daughter back to the United States. He thinks his wife and Chiara should return to the United States, where they began as a family. But his wife wants to stay in Brazil with their child.

He wants to win this international custody battle, but he also does not want Chiara to have scarring memories of parents at war.

The dispute has drained both parents financially and emotionally. He has considered giving up the fight, but he can't: He does not want to lose touch with his child. He wants to be a regular father again, not just a voice over the phone.

"I'm not really even asking that she be without her mother," he said in his kitchen in Cambridge this spring. "What I'm asking is that she not be without her father."

THE COUPLE FELL IN LOVE IN BOULDER, COLO., and lived together for three years before their baby was conceived. As the due date approached, they married in Denmark, where McHugh's wife, Myanna, had family. They also prepared for an underwater birth with two midwives.

On Dec. 31, 1999, Chiara was born. The birth had to be relocated to a hospital after Myanna's labor dragged on for two days, but nothing took away from the magic of holding the blond, blue-eyed newborn for the first time.

"There's something about just the transmission of genes and when she comes out and you're holding her, it's as much you as your wife," McHugh said. "The beauty, the responsibility, an implicit trust and love that is unconditional."

The couple's love for their baby flourished, but their marriage did not. They stayed together during their move from Boulder to Cambridge, but the relationship unraveled during four years they spent in Brazil.

McHugh's wife loved her job in environmental politics and thrived in the new culture. McHugh worked from home under a special arrangement with a US computer company, but he missed life in America.

The couple eventually moved into separate homes in Rio de Janeiro, preparing for divorce while sharing equally in the care of Chiara.

For McHugh, spending time with Chiara was the highlight of his life in Brazil. Coming to fatherhood relatively late, he was surprised at how intellectually invigorating it was to be with a child. Together, they studied bugs and designed painting projects. They took long walks with their newly adopted border collie, Marola. He loved looking at the world through the eyes of a preschooler.

BUT EVERYTHING CHANGED LAST FALL. The company McHugh works for was no longer willing to extend his flexible arrangement to work abroad, and told him he had to come back to the United States.

McHugh's wife was adamant that she wanted to stay in Brazil, and filed for a Brazilian court order giving her temporary sole custody of Chiara. McHugh thought little of his wife's legal move: How could three American citizens fall under the jurisdiction of the Brazilian family court system?

Confident that he and his wife would eventually work out a fair arrangement on custody, McHugh returned to Cambridge in September. He knew there was more time in the months ahead to negotiate with his wife. She and Chiara would be coming to Cambridge in November as part of a visa-renewing trip.

But his confidence was misplaced: Even with the help of a mediator, their talks went nowhere. After several weeks, his wife, feeling pressure to return to her job, announced that she and Chiara were going to go back to Brazil. Panicked, McHugh obtained a restraining order to block his wife from taking Chiara out of the country.

At a hearing on the restraining order in Middlesex County Probate and Family Court, his wife, through tears, produced the Brazilian court document showing she had been awarded temporary custody of Chiara. The judge examined the papers. Then, citing an international pact that gives jurisdiction of a child custody dispute to the country where the child lived in the previous six months, he ruled that the temporary custody ordered issued in Brazil had to be honored.

On Dec. 17, McHugh's wife and daughter flew back to Brazil.

RETURNING ALONE to his Cambridge condominium, McHugh felt like a naive fool. Why had he imagined that they could work it out on their own?

He had to fight back. He hired two lawyers - one in Cambridge, one in Brazil. His Brazilian lawyer warned him that if jurisdiction remained in Brazil, McHugh would probably never win custody - even joint custody - because judges there traditionally give sole custody to the mother. He would need to convince the Brazilian court to transfer jurisdiction over custody issues to a US court.

McHugh was prepared for a legal battle.

"I don't want to fight," he said. "I want to get on my with life. But I also want to participate in the life of my daughter. She's 7 years old only once in her life."

As the lawyers prepared his case over the next few months, McHugh kept busy with his software job, taking daily 10-mile runs along the Charles River and seeing old friends. He spent endless hours on the Internet, reading about cases involving child custody issues.

And he clung to the one thing that kept him connected to Chiara: the telephone. Before dialing each night, he paused to mentally clear his mind.

"If I don't, it's disastrous because there's so much sadness, so much anger at my situation and my soon-to-be-ex-wife," he said.

He worked hard at being the best phone dad a 7-year-old girl could have. If a talk went badly, he later spent hours analyzing why.

He consulted a child therapist to advise him on how to make the best of each evening's call, including sticking to concrete things that appeal to young girls. He taught Chiara easy-to-sing songs, such as "Close to You." He sent her 40 miniature toy frogs, which they counted over the phone.

They developed their own quirky rituals, including predictable greeting lines.

"Hi Chiara!" McHugh would start out.

"How did you know it was me?"

"I found you."

FOR MCHUGH, these phone calls were also a reminder that a vulnerable child was at the center of the dispute. He wavered about continuing the fight: He wanted justice in the courts, but he didn't want a drawn-out, legal battle that could leave his daughter struggling to please two parents in two homes in two countries.

"Do I continue the fight - and how?" he often asked himself. "And what's the long-term impact of the decison?"

He felt terrible pressure, believing that his daughter's childhood was at stake.

"She's a beautiful child," he said later. "I'm worried we're going to screw it up. . . . Screw it up in the sense that she doesn't feel safe or loved."

He often had fleeting thoughts of returning to Brazil, but that would mean leaving a well-paying job with an employer who had accommodated him for 13 years and surrendering his belief that his daughter should grow up in the United States.

But that ideal grew more distant in June, when the Brazilian court reinforced its ruling that it - and not the US courts - had jurisdiction over the case. His lawyers said it would be difficult to get the ruling overturned.

Beyond that, he had already spent thousands of dollars on legal fees and knew that pursuing the case would require an even greater commitment of resources.

He felt as if he was running out of options. He could persist in an uphill battle, even steeper now, to have the custody case moved to the United States.

Or he could spare more family strife and instead hope the Brazilian courts would establish a reasonable visitation schedule and a fair assessment of child support.

IN BRAZIL, Myanna also worried about the effect that the custody dispute could have their daughter, explaining in a phone interview how she had tried not to let it get in the way of doing what was best for Chiara. McHugh, she said, is an "exceptionally committed father," and Chiara adores him.

In an effort to encourage the father-daughter relationship, Myanna in June agreed to McHugh's request to have Chiara come to the United States for three weeks during her school vacation.

McHugh was elated. It was a hastily arranged trip, but he could not wait for the extended visit with Chiara.

Just before the trip, father and daughter shared a special phone call. McHugh thought Chiara sounded tired, and he wondered if it was because she and her mother had recently moved to a new town in Brazil.

McHugh told Chiara that he was "proud" that she was weathering the transition.

Chiara paused, then replied.

"Well, Papa, I'm really proud that you call me every day."

"PAPA!" CHIARA SHRIEKED as she lept into her father's arms at JFK Airport in New York.

They drove back to Cambridge. As soon as they opened the door to the apartment, Chiara ran to hug Marola. In the living room were several art and toy-building projects that her father had prepared.

Every day, they took Marola to a nearby park, where Chiara practiced cartwheels on the grass and worked on learning to throw a baseball with her father.

"Oops! I did a bad throw!" Chiara yelled out in English, with a trace of a Portuguese accent.

McHugh treasured their long strolls and meandering conversations. She once asked about a hearse parked outside a Catholic church. Another day she asked for an explanation of the turban she saw being worn by a Sikh taxi driver.

He wanted her to know about sharing responsibilities. He created a board of daily chores - setting the table, putting away toys, feeding the dog - complete with stickers for Chiara to use after finishing each one.

They spent a week in Chicago visiting McHugh's older sister and her 8-year-old daughter, who was adopted from China. The foursome went to museums and the zoo. McHugh made gourmet macaroni and cheese and other home-cooked favorites.

The day before Chiara's flight back to Brazil, McHugh surprised her with Broadway tickets to see the Lion King.

At the airport the next day, the two embraced, then waved through tears as Chiara boarded the plane.

The flight was delayed for several hours. Waiting nervously in the terminal, McHugh heard his cellphone ring.

He remembered writing his cellphone number on his daughter's airline baggage tag and putting it on her wrist like a bracelet.

"I'm OK," she reassured him.

She had borrowed the phone from a nearby passenger.

DAYS AFTER CHIARA LEFT, McHugh dismissed his Cambridge lawyer, resigning himself to the fact that he probably would not be able to get his case moved to the US courts and that the Brazilian court would almost certainly award permanent custody of Chiara to his wife.

But he would try to get as much visitation time as possible. He hoped for all of Chiara's school vacations, either in Brazil or the United States, opportunities to replicate their treasured memories from July.

And he would try to stay focused on what little he can control in his relationship with Chiara.

The intimate rituals of their nightly phone calls would once again tether them. For now, their bond would be strong enough to withstand the thousands of miles between them.

"She loves me as a father," he said. "She knows my values. I'm reassured."

Tomorrow: A mother facing deportation makes a gut- wrenching decision. Patricia Wen can be reached at wen@globe.com

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