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Friday, September 16, 2016

Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) [Panama][Federal & State Judicial Remedies][Temporary Restraining Order]

In Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) Petitioner father filed a Petition for Return of Children To Panama. He claimed that Respondent, the mother of the children, absconded to Florida with their eight-year old twin sons as of March 20, 2013. This was the second time that the Respondent has removed the children to the United States from Panama. Respondent returned the children to Panama only after a United States District Court in the Eastern District of Missouri ordered her to do so in September 2010. Petitioner alleged that the children resided with him in Panama City, Panama, up until February 20, 2013. Petitioner maintained that the delay in bringing this action was a result of the Respondent’s concealment of the children’s location from Petitioner through the use of aliases and frequent relocations across the state. The Court granted a temporary restraining order finding preliminarily that Petitioner would  suffer irreparable harm unless the Order was granted. Given that Respondent again had removed the children from Panama, and refused to return the children from Florida to Panama, there existed a clear risk that Respondent would further secret the children and herself in violation of the Hague Convention, the ICARA, and other applicable law.  The Court preliminarily found that  the allegations established a prima facie claim of wrongful removal under Article 3 of the Hague Convention and that the fact-specific nature of numerous issues necessitated an evidentiary hearing. Nevertheless, at the Temporary Restraining Order stage, the Court found that Petitioner had shown that there is a substantial likelihood of success on the merits given his preliminary establishment of a prima facie case, the prior wrongful removal by Respondent, and the concealment tactics purportedly used by Respondent that would undermine a “well-settled” affirmative defense. In addition, the Court found that the threatened injury outweighed any harm the relief would inflict on Respondent and that that the issuance of the Temporary Restraining Order would l serve the public interest. The Court set a hearing date due to the fact that the Hague Convention provides a six week window for the adjudication of such cases. It required Respondent to produce the children at the hearing. Respondent was prohibited from removing the children from the jurisdiction of the Court pending a hearing on the merits, and further directed that no person acting in concert or participating with Respondent shall take any action to remove the children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition for Return of Children to Panama.

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