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Fernandez v. Bailey

United States Court of Appeals, Eleventh Circuit

November 20, 2018

ROQUE JACINTO FERNANDEZ, Petitioner-Appellant,
CHRISTY NICOLE BAILEY, Respondent-Appellee.

          Appeal from the United States District Court No. 8:16-cv-02444-VMC-TGW for the Middle District of Florida

          Before MARTIN, JORDAN, and WALKER, [*] Circuit Judges.


         The American mother of the twin boys at the center of this case abducted them twice from Panama before they were six years old. After the first abduction, when they were infants, a Missouri court ordered their return to their native Panama under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or Convention). The second time, when the boys were five and while custody proceedings were underway in Panama, their mother abducted them and took them to Tampa, Florida. It took their Panamanian father, Roque Jacinto Fernandez, two and one-half years to find them. When he petitioned the district court for their return this time, the district court denied the petition, finding that in the little over two years that the children had been in Florida they had become so settled that an exception to the Hague Convention's general principle of return applied. The father appealed to this court, arguing in relevant part that the district court erred by declining to exercise its discretion to order return, even if the children were settled, because of the mother's repeated abduction of the boys. We agree with the father that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother's second abduction. Accordingly, we VACATE the district court's denial of the petition for removal, and REMAND to the district court to grant the petition and enter a judgment ordering the children returned to Panama so custody proceedings can continue.

         I. BACKGROUND

         On May 15, 2009, American Christy Bailey ("the mother") fled Panama with her two nine-month-old sons without telling the boys' father, Roque Jacinto Fernandez ("the father").[1] After he found the mother and boys living in Cape Girardeau, Missouri, the father petitioned in the District Court for the Eastern District of Missouri (Limbaugh, J.) seeking the return of the boys to Panama under the Hague Convention. See Fernandez v. Bailey, No. 1:10CV00084 SNLJ, 2010 WL 3522134 (E.D. Mo. Sept. 1, 2010), modified, No. 1:10CV00084 SNLJ, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). In September 2010, the Missouri district court ordered their return upon finding that the father had a custody right under Panamanian law, the mother's removal of the children was "wrongful" and in violation of the Convention, and none of the exceptions to return applied. The mother followed the order and returned to Panama with the children so custody proceedings there could determine the matter. As a precaution, the father, unbeknownst to the mother, had an exit restriction put in place to prevent the mother from leaving the country again without his permission.

         While the boys continued to live with their mother in Panama, their father visited with them every other weekend and pursued custody in Panamanian court. Because of the parents' animosity, the Panamanian judge designated a police station as the pick-up and drop-off point. These visits went on routinely until January 2013, when the father, in contravention of the custody arrangement in place, kept the children for two months. At the mother's request, a police officer retrieved the boys from their school and took them to court where the judge ordered the children returned to the mother. The father has not seen or spoken with the children since then.

         For the next eleven months, the children remained in Panama with their mother. During this time, the father says he showed up for the regularly scheduled visits, which the mother denies. The father retained a lawyer in Panama to locate the children. In the meantime, the mother secured a well-paying job in Tampa, and on February 2, 2014, less than three and one-half years after she was ordered to return to Panama, and, with custody proceedings in Panama pending, the mother again abducted the children to the United States without telling the father. The boys are dual Panamanian-American citizens with American passports, and they were allowed to lawfully enter the country.

         In the United States, the mother and the boys first moved into an apartment in St. Petersburg, Florida, where the boys started school. About a year later, the three moved to nearby Tampa, where the schools were better. The mother paid bills and taxes in her own name, and the children were signed up for T-Ball teams and camps using their own names as well.

         Meanwhile, in Panama, the father continued to search for his children. In September 2014, frustrated by the lack of progress, the father hired a new attorney who sought information about the children from Panamanian immigration authorities. In January 2015, those authorities informed the father that the children had left Panama nearly a year earlier. At that point, the father turned to the U.S. Department of State ("State") for assistance in locating his children. In response, State mailed letters to the mother at multiple addresses in Florida that were never returned. Eventually the father's private investigator located the boys in Tampa, and on August 24, 2016-two and one-half years following their abduction from Panama-the father filed his second petition for return of the children, this time in the District Court for the Middle District of Florida. As in the first suit, the father's petition sought the return of the children under the Hague Convention. In response, the mother argued that the children should not be returned because (1) there was a grave risk of harm to the children if they returned to Panama, (2) the children had a mature objection to returning, and (3) the children were settled in their new home.

         On September 12, 2016, the district court (Hernandez Covington, J.) commenced a three-day evidentiary hearing, during which the mother took the stand, the father testified in English by video from Panama, and the district court interviewed the boys in camera. Following the hearing, the district court found that the father had established a prima facie case under the Hague Convention because the children were wrongfully taken from Panama.[2]

         Nevertheless, the district court determined that the mother had established by a preponderance of the evidence the affirmative defense that the children were settled within the meaning of Article 12 of the Convention. Although the district court acknowledged that it retained discretion to order the children returned, it declined to do so, finding that the children's interest in settlement outweighed the Hague Convention's purpose to discourage wrongful removals. Accordingly, on September 21, 2016, the district court entered an order denying removal to Panama. The father timely appealed.


         On appeal, the father argues that the district court erred when it denied his petition to return the children to Panama by (1) misapplying the settled exception to return, and (2) declining to exercise its discretion to order return, even if the children were settled, because of the mother's repeated abduction of the boys. We agree with the father that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother's second abduction. Therefore, we conclude that return is required, and we need not address the district court's conclusion that the boys are settled.

         A. The Hague Convention

         Both Panama and the United States are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. See Status Table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conference on Private International Law, (last visited November 19, 2018). That treaty has two aims: (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 1, T.I.A.S. No. 11, 670, 19 I.L.M. 1501, 1501. The Convention furthers its goal of "discourag[ing] child abduction," Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014), by requiring signatory states to make available a remedy whereby parents of abducted children can bring proceedings to compel the return of their children who have been taken to foreign countries.[3] See Hague Convention arts. 7, 12. This return remedy is "[t]he Convention's central operating feature," Abbott v. Abbott, 560 U.S. 1, 9 (2010), and "the core of the Convention," State Dep't Legal Analysis, at 10, 507. It "lays venue for the ultimate custody determination in the child's country of habitual residence rather than the country to which the child is abducted." Lozano, 572 U.S. at 5. And it honors "the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence." Abbott, 560 U.S. at 20.

         In the United States, Congress made the return remedy available by passing the International Child Abduction Remedies Act (ICARA) of 1988, which granted federal district courts jurisdiction to review petitions for return filed by the parents of abducted children. See 22 U.S.C. §§ 9001(b)(1), 9003(a).

         For a parent whose child has been abducted to a foreign country, taking advantage of this return remedy is no easy task. Because ICARA requires reviewing courts to have personal jurisdiction over the abducted child, a parent can only file a return petition in the district where the child is located. See Pielage v. McConnell, 516 F.3d 1282, 1286 (11th Cir. 2008) (citing 42 U.S.C. § 11603(b)). Practically, for a foreign parent seeking the return of their child from the United States to that parent's country, this means that the foreign parent cannot petition until they locate their missing child, a task that frequently proves to be difficult and time consuming.

         What's more, under the Convention, if too much time has passed between the abduction and the filing, the right of return becomes circumscribed. See Lozano, 572 U.S. at 5. The Convention treats petitions filed in the first year differently from those filed more than one year after a child is removed: if the petition is filed within one year of the abduction, the signatory country where the child is located "shall order the return of the child forthwith"; but when a parent petitions for return more than a year after a child has been removed, the signatory country "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention art. 12 (emphasis added). While in both situations return remains the principal objective, after a year has passed, the abducting parent may prevent return by showing upon a preponderance of the evidence that the abducted child is "now settled" in their new country. See id.; see also 22 U.S.C. § 9003(e)(2)(B). This exception accounts for the reality that "at some point a child may become so settled in a new environment that return is no longer in the child's best interests." Hernandez v. Garcia Pena, 820 F.3d 782, 787 (5th Cir. 2016); see also Lozano, 572 U.S. at 15 ("[T]he expiration of the 1-year period opens the door to consideration of a third party's interests, i.e., the child's interest in settlement.").

         Because the one-year period is not subject to equitable tolling, see Lozano, 572 U.S. at 10, the combination of the personal jurisdiction requirement and the one-year period after which the child may be found settled (such that return will not be ordered automatically) presents a substantial hurdle for the parent whose child has been abducted and from whom the whereabouts of the child have been concealed. And this is so even when the parent's search is diligent and unflagging, because "at least in some cases, [a parent's] ...

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