Senior Judge John M., Walker Jr. (Courtesy photo)
The U.S. Court of Appeals for the Eleventh Circuit has ordered that two children abducted from Panama by their mother must be returned to their father’s homeland, reversing a trial judge who ruled the children had become so “settled” in the United States that they should be allowed to stay.
Under the Hague Convention on the Civil Aspects of International Child Abduction, the general “principle of return” should have mandated the children be returned to Panama after being twice abducted from their mother, an American citizen, according to the panel's ruling.
The children were 5 years old the second time they were taken and had been living in Tampa for more than two years when Judge Virginia Hernandez Covington ruled for the U.S. District Court for the Middle District of Florida that the settlement exception to the treaty allowed her to override it.
While “sympathetic” to the father, who had to hire a private investigator to track the children down in Florida, Covington said their interests “outweighed the other interests of the Hague Convention because disruption of the stable and permanent connection the children have established to their new home would be harmful.”
But the Eleventh Circuit said Covington clearly abused her discretion and that she must order their return to Panama.
The published opinion was released Wednesday and written by Senior Judge John Walker of the U.S. District Court for the Second District, sitting by designation, with the concurrence of Judges Beverly Martin and Adalberto Jordan.
As detailed in the opinion and other filings, Christine Bailey and Roque Fernandez became romantically involved when Bailey was working in Panama, and gave birth to twin boys.
Bailey left Panama in 2009 without telling Fernandez and moved to Cape Girardeau, Missouri.
Fernandez filed suit under the Hague Convention seeking the the return of the children, then 9 months old.
Judge Stephen Limbaugh Jr. of the U.S. District Court for the Eastern District of Missouri ruled in 2010 that Bailey’s removal of the children was wrongful and that none of the Hague Convention’s exceptions applied and ordered their return.
Bailey returned to Panama, where she and Fernandez entered into custody negotiations and where Fernandez filed criminal charges over her abduction of the children.
The twins lived with their mother, and their father visited every other weekend. The relationship was so acrimonious that a Panamanian judge ordered that they be picked up and dropped off at a police station.
In January 2013, Fernandez picked the boys up and didn’t bring them back for two months. Bailey had the police retrieve them from school and fled to Florida, eventually settling in Tampa. Fernandez, who is barred from entering the U.S. because of an earlier criminal conviction here, has not seen them since.
Once he located them, Fernandez filed suit in Florida’s Middle District, again citing the Hague Convention and arguing that he had custody rights under Panamanian law.
In denying their return, Covington wrote that, while she was “troubled” and “deeply disturbed” by Bailey’s actions in twice fleeing Panama with the children, “the interest in discouraging wrongful removals like that perpetrated by Bailey is not enforced at any cost under the Hague Convention.”
The twins “are thriving in Florida,” wrote Covington. “Furthermore, the court believes that the children’s interest in settlement in this case outweighs the other interests that would be served by returning the children to Panama.”
In reversing her, Walker wrote 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.’”
“We do not suggest that district courts should regularly return a child under the Convention despite a finding of settlement in a new environment,” he wrote. “To the contrary, a district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of the Convention’s stated exception. But this case, for several reasons, is unique.
“First, this is the second time in five years that the mother has wrongfully removed the boys from Panama and brought them to the United States. And it is the second time that the father, from abroad, has had to petition a federal district court under the Convention for the return of the boys to their habitual residence in Panama,” the ruling said.
Covington “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,” Walker wrote.
The panel wrote that Bailey prevented the Panamanian courts from resolving multiple child custody issues. The panel added the district court order would require child custody proceedings to be held in a country the father is barred from entering.
“This means that the father will not be able to personally appear before a Florida court to argue for custody … and significantly impedes the father’s ability to fight for his rights,” the panel wrote.
Fernandez is represented by Brett Barfield, Brandon Faulkner and Jennifer Lada of Holland & Knight.