(Nov. 28, 2018) On November 20, 2018, the US Court of Appeals for the Eleventh Circuit ordered that two ten-year old siblings who were wrongfully removed by their mother to the United States four years ago be returned to Panama. (Fernandez v. Bailey, No. 16-16387 (11th Cir. 2018) (Fernandez 2018), US Court of Appeals for the 11th Circuit website.)
The mother, a US citizen who was residing in Panama, gave birth to twin boys in 2008. (Fernandez v. Bailey, No. 1:10CV00084 SNLJ, at 2–3 (E.D. Mo. Sept. 1, 2010) (Fernandez 2010), GovInfo website.) The twins’ father is a Panamanian citizen and resident to whom the mother was engaged but never married. (Id. at 3.) In May 2009, the mother removed the infant twins from Panama to Missouri without telling the father. (Fernandez 2018 at 3.) The father was able to locate the twins and mother in Missouri and filed a petition for the return of the children to Panama under the Hague Convention on the Civil Aspects of International Child Abduction. (Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, Hague Conference on Private International Law website.) In September 2010, the Missouri District Court determined that the father had a valid custody right under Panamanian law, granted the petition, and ordered the return of the twins to Panama. The mother complied with the order and returned to Panama with the twins. (Id.)
Between 2010 and 2014, during ongoing contested custody proceedings in Panama, the mother and twins resided in Panama and the father had court-ordered weekend visitation. (Fernandez 2018 at 4.) As a precaution, the father had an exit restriction placed on the mother (of which she was not aware) to prevent her from leaving Panama with the twins again without his permission. (Id. at 3–4.) Despite the exit restriction, in February 2014, the mother left Panama with the twins without informing the father and began residing in Florida. (Id. at 4.) The father believed the mother and twins were still in Panama because the exit restriction was still in place, and thus concentrated his efforts on finding them in Panama. (Id. at 20–21.) In January 2015, Panamanian authorities informed the father that the mother and children had left Panama a year earlier. (Id. at 5.) Eventually, the father located the mother and twins in Florida and in August 2016, filed his second petition under the Hague Convention in federal court for return of the wrongfully removed children. (Id.)
In the underlying district court proceeding, the mother argued that the children should not be returned to Panama because the father had waited too long to file his petition for return and the children were settled in Florida. (Fernandez 2018 at 5.) The district court determined that the twins had been wrongfully taken from Panama, but that the mother had established by a preponderance of the evidence that the children were “now settled” in Florida within the meaning of the Hague Convention, and denied the father’s petition for the return of the children to Panama. (Id. at 6.) The father appealed.
The Hague Convention (to which Panama and the US are both signatories) is a treaty designed to discourage international child abduction, facilitate the prompt return of children wrongfully removed to any signatory state, and ensure that custody determinations in a child’s country of habitual residence are honored. (Fernandez 2018 at 7–8 (internal citations omitted).) Under the Hague Convention, the return of wrongfully removed children to their country of habitual residence is the default remedy; however, if too much time has passed between the wrongful removal and the petition for return (more than one year), the abducting parent may prevent return by demonstrating, by a preponderance of the evidence, that a child is “now settled” in his new country. (Id. at 9 (citing Hague Convention art. 12).) However, the fact that an exception to return exists does “not limit the power of a judicial or administrative authority to order the return of the child at any time.” (Hague Convention art. 18.)
The US law implementing the protocol for proceedings under the Hague Convention is the International Child Abduction Remedies Act of 1988. (Fernandez 2018 at 8; International Child Abduction Remedies Act of 1988 (ICARA), 22 U.S.C. § 9001 et seq.) Under ICARA, petitions for the return of children wrongfully removed to the United States must be filed in the federal district court where the child is physically located (22 U.S.C. § 9003(b), U.S. House of Representatives Law Revision Council website), necessitating the identification of the location of the children before the petition can be filed (Fernandez 2018 at 9).
The Eleventh Circuit concluded that because this was the mother’s second abduction of the twins, the default remedy of return was required and the fact that the twins were settled in the US was of little consequence to that requirement. (Fernandez 2018 at 7.) The circuit court highlighted three unique factors in this case that the district court failed to properly balance. First, this was the mother’s second wrongful removal of the twins; the circuit court found that the district court did not sufficiently weigh the audacity of this second abduction. (Id. at 19–21.) Second, the wrongful removal occurred during the pendency of custody proceedings in Panama and prevented the Panamanian courts from resolving the dispute. (Id. at 21–22.) Third, the father is currently barred from entry to the US because he was deported after a juvenile felony burglary conviction, and therefore cannot appear in person to litigate custody in the US. (Id. at 22.) Given the three unique factors, and with consideration of the purpose of the Hague Convention, the circuit court found that the district court abused its discretion in determining that the twins’ settlement in the US was the weightiest factor and denying return of the twins to Panama. (Id. at 23.) The circuit court ordered the return of the twins to Panama in a manner that is “least disruptive to the children’s lives and to their educational prospects.” (Id.)