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Thursday, November 22, 2018

Fernandez v Bailey, 2018 WL 6060380 (11th Cir., 2018) [Panama] [Now settled exception] [Petition granted]

          In Fernandez v Bailey, 2018 WL 6060380 (11th Cir., 2018) on May 15, 2009, American Christy Bailey (mother”) fled Panama with her two nine-month-old sons without telling the boys’ father, Roque Jacinto Fernandez. After he found the mother and boys living in Missouri, he petitioned in the District Court for the Eastern District of Missouri seeking the return of the boys to Panama under the Hague Convention. 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 returned to Panama with the children so custody proceedings there could determine the matter. 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. Visits went on routinely until January 2013.The father had not seen or spoken with the children since then. The mother secured a job in Tampa, and on February 2, 2014, less than three and one-half years after she was ordered to return to Panama, with custody proceedings in Panama pending, the mother again abducted the children to the United States. The boys were dual Panamanian-American citizens with American passports, and they were allowed to lawfully enter the country. In Panama, the father searched for his children. In September 2014 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. 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. Following a hearing, the district court found that the father had established a prima facie case under the Hague Convention, but 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.

          The Eleventh Circuit reversed and granted the petition holding that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother’s second abduction. It construed the term “settled” to mean that a child is settled within the meaning of ICARA and the Convention when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment. In noting that all returns will necessarily involve some level of disruption to the child or children involved, it cautioned that disruption should not be considered per se detrimental. Rather, the “settled” inquiry requires courts to carefully consider the totality of the circumstances. It noted that consistent with the language in Article 12, most courts in the United States have held that, after the first year of abduction, a court is permitted but not mandated to order the child’s return notwithstanding the settlement of the child. See, e.g., Alcala v. Hernandez, 826 F.3d 161, 175 (4th Cir. 2016); Yaman v. Yaman, 730 F.3d 1, 18 (1st Cir. 2013); Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001) It concluded that based on Article 18 of the Convention a court can order the return of a wrongfully removed child who is settled in his new environment.

          The Court explained that the two primary objectives of the Convention, according to Article 1, are “to secure the prompt return of children wrongfully removed or retained,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.” 

          Because it concluded that a court may exercise its discretion to order the return of a child notwithstanding finding that an exception to return is met, the Eleventh Circuit reviewed the determination by the district court to return or not to return a child for an abuse of discretion.

          The Eleventh Circuit pointed out that the return remedy is “[t]he Convention’s central operating feature.” Abbott, 560 U.S. at 9, 130 S.Ct. 1983. Based on “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,” return must be the default in order to “lay[ ] 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, 134 S.Ct. 1224. The Convention was designed in part to prevent an abducting parent from wrongfully removing a child to a friendlier forum for the adjudication of a custody dispute.  However, a district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of Article 12’s stated exception.

          This case was unique for several reasons. This was the second time in five years that the mother had wrongfully removed the boys from Panama and brought them to the United States. It was the second time that the father, from abroad, had to petition a federal district court under the Convention for the return of the boys to their habitual residence in Panama. The Eleventh Circuit believed that the district court abused its discretion by not sufficiently weighing the audacity (and significance) of a second wrongful removal. The mother admitted that when she wrongfully removed the boys from Panama in 2014, she left the country without the father’s knowledge. She also left the country in defiance of an exit restriction, which the Panamanian court had put into place in the wake of the 2009 abduction specifically to prevent the mother from leaving Panama with the children a second time. Because of this court-ordered exit restriction, the father did not believe the mother could have left the country with the boys, which resulted in him looking for them within Panama, rather than outside it, from March of 2013 until January of 2015. The district court did not properly weigh the mother’s flouting of the 2010 Missouri district court’s injunction which ordered the return of the boys to Panama, or the mother’s disrespect for the Panamanian court’s exit restriction forbidding her from taking the boys from Panama.

          Second, the wrongful removal at issue here occurred while the Panamanian courts were deeply involved in multiple issues related to the children’s custody.  By wrongfully removing the boys, the mother prevented the Panamanian courts from resolving these outstanding issues. Third, the result of the district court’s order was that child custody proceedings would be held in Florida. But the father was currently not allowed, and likely would never be permitted, to come to the United States due to a juvenile felony burglary conviction. This meant that the father would not be able to personally appear before a Florida court to argue for custody. As the district court recognized, this state of affairs gives the mother a decided home-field advantage in the custody proceedings, and significantly impedes the father’s ability to fight for his rights. Despite this acknowledgment, the district court concluded that “the children’s interest in settlement in this case outweighed the other interests that would be served by returning the children to Panama.”

          The Court held that given the confluence of the unique facts in this case the district court’s decision to not order the return of the boys was contrary to the aims and objectives of the Convention and constituted an abuse of discretion. It remanded the matter to the district court to grant the petition and enter a judgment ordering the children returned to Panama.