Roque Jacinto Fernandez v. Christy Nicole Bailey
909 F.3d 353
11th Cir.2018Background
- Mother (Bailey) twice removed twin boys from their habitual residence, Panama: first in 2009 (infants) and again in 2014 (age ~5), the first removal having been held wrongful and ordered returned under the Hague Convention.
- After the 2010 Missouri order returned the boys to Panama, Panamanian courts supervised visitation and custody proceedings; the father (Fernandez) had an exit restriction entered to prevent a second removal.
- In February 2014 the mother again took the children to the U.S. (Tampa) while Panamanian custody matters were pending and in defiance of the exit restriction; the children were U.S./Panama dual citizens and entered lawfully.
- The father located the children in Tampa in August 2016 and filed a Hague Convention return petition in the Middle District of Florida; the district court found wrongful removal but concluded the children were "now settled" and exercised discretion to deny return.
- On appeal the Eleventh Circuit held the district court abused its discretion by refusing to order return despite the settled finding, emphasizing the mother’s repeated abduction, violation of court-ordered exit restriction, ongoing Panamanian proceedings, and the father’s inability to litigate in the U.S.
Issues
| Issue | Plaintiff's Argument (Fernandez) | Defendant's Argument (Bailey) | Held |
|---|---|---|---|
| Whether children were wrongfully removed under the Hague Convention | Yes; removal from habitual residence Panama was wrongful | Denied consent; argued defenses to return | District court and Eleventh Circuit: removal was wrongful (prima facie established) |
| Whether children were "now settled" in the U.S. so as to bar return under Article 12 | N/A (father disputes settled consequence) | Mother: filed >1 year after removal; children developed significant ties in U.S.; settled exception applies | District court found children settled; Eleventh Circuit did not disturb the settled finding (it was unnecessary to resolve remand) |
| Whether a district court may order return despite a proven Article 12 "settled" exception (Article 18 discretion) | Court should exercise discretion to order return given mother’s misconduct and Convention goals | Mother argued settlement and children’s interests outweigh return; urged court to decline return | Held: Courts possess discretion under Article 18 to order return even if Article 12 applies; that discretion is cabined by Convention goals |
| Whether the district court abused its discretion in declining to return children given mother’s repeated abduction and related facts | District court abused discretion by failing to sufficiently weigh repeated abduction, violation of exit restriction, ongoing Panamanian proceedings, and father's inability to litigate in U.S. | District court weighed factors and denied return as balancing children’s settled interest over other objectives | Held: Abuse of discretion; appellate court vacated denial and remanded with instruction to order return to Panama |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (2010) (Convention’s return remedy and policy favoring return to habitual residence)
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (treatment of petitions filed after one year and limits on equitable tolling)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (Article 12 allows but does not mandate refusal to return a settled child)
- Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) (settled means more than material comfort; guidance on settled exception)
- Hernandez v. Garcia Pena, 820 F.3d 782 (5th Cir. 2016) (requirement of significant connections to new country to show settlement)