As of Thursday afternoon, the boy's father, David Goldman, was still at his home in New Jersey. U.S. Rep. Chris Smith, a New Jersey Republican who has traveled with Goldman to Brazil several times, said there's a concern that having Goldman have custody but remain in Brazil might be unhealthy.
Goldman's side is also concerned that an appeal could scuttle the arrangement.
"We don't put him on an airplane until we're actually sure it's going to happen," said his lawyer, Patricia Apy.
The boy, Sean Goldman, said in a transcript released Wednesday that he wants to remain in Brazil, but Apy said he is not mature enough to be asked to have a role in deciding where he should live - and that he's particularly fragile in his position at the center of an international legal dispute.
In 2004, Sean's mother, Bruna Bianchi, took him for a vacation to her native Brazil and never returned.
She later married a Rio de Janeiro lawyer and died last year giving birth to a daughter.
The boy is now living with his mother's new husband, Joao Paulo Lins e Silva, who wants to retain custody.
Goldman, who lives in Tinton Falls, N.J., has been seeking custody of Sean under the Hague Convention on international child abductions.
A lower court in Brazil ruled this month that Sean must be returned to the U.S., but that decision was suspended by a supreme court justice based on a petition filed by a political party that argued that removing Sean from his current family environment would hurt him.
Last week, Brazil's Supreme Court rebuffed the bid to stop Sean from being taken to the United States, instead ruling that the decision on the boy's fate must be made by a federal court. It's not clear when that ruling may come.
In the meantime, the Brazilian family released a transcript Wednesday of an interview in which the boy tells a psychologist repeatedly, "I want to stay here in Brazil" and that he will "break down totally" if he is sent to the United States.
Goldman's supporters are objecting to the video.
Smith called the video itself "abusive."
"It reminded me of a hostage situation where you get somebody and you ask them questions in front of the camera," Smith said.
"There's no doubt that he was coached."
Apy said she believes the Brazilian family is trying to take advantage of a provision in the Hague Convention that can give children a say in whether they should be returned to another country. But she said it does not apply in this case because of Sean's young age and psychological fragility.
"The psychological pressure it places on a child is so extreme," she said.
Sergio Tostes, the lawyer for Lins e Silva who plans to file the appeal, said Apy is misinterpreting the law.
"There is no age limitation for a child to be heard, and, in fact, the provision says that if a child is able to express himself - even if he is only five years old," Tostes said, "then his opinion must be heard and taken into consideration by the judge."
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