Fernandez v. Bailey

Filing 31

ORDER: Petitioner Roque Jacinto Fernandez's Verified Petition for Return of Children to Panama (Doc. # 1) is denied. The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 9/21/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROQUE JACINTO FERNANDEZ, acting
on behalf of minor children,
C.R.F.B. and R.J.F.B.,
Petitioner,
v.

Case No. 8:16-cv-2444-T-33TGW

CHRISTY NICOLE BAILEY,
Respondent.
______________________________/
ORDER
This cause comes before the Court on the merits of Petitioner
Roque Jacinto Fernandez’s Verified Petition for Return of Children
to

Panama

(Doc.

#

1),

which

was

filed

on

August

24,

2016.

Respondent Christy Nicole Bailey filed an amended Answer with
affirmative defenses to the Petition on September 7, 2016. (Doc.
# 15). The Court held an evidentiary hearing from September 12,
2016, to September 14, 2016. Both sides were represented by counsel
and both gave sworn testimony at the hearing. The Court also spoke
with the children in camera to determine the applicability of
Respondent’s affirmative defenses. After due consideration, the
Court denies the Petition.
I.

Factual Background
In the pleadings and at the evidentiary hearing, both sides

presented testimony and documentary evidence, which was often
contested

by

the

other

party.

However,
1

much

of

the

evidence

presented,

especially

the

contested

evidence,

relates

to

the

merits of the underlying custody determination rather than this
Court’s limited inquiry into whether the removal of the children
by Respondent was wrongful under the Hague Convention, and, if so,
whether one of the Convention’s narrow exceptions to repatriation
apply.

Therefore,

allegations

the

pertinent

Court
to

will

outline

Petitioner’s

only

Hague

those

Convention

factual
claim.

Based on the pleadings and evidence presented at the hearing, the
Court makes the following findings of fact.
Petitioner Roque Jacinto Fernandez, a Panamanian citizen, and
Respondent Christy Nicole Bailey, an American citizen working in
Panama, were involved in a romantic relationship. Respondent gave
birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August
18, 2008. (Petitioner’s Ex. 1, 2). The children are dual Panamanian
and American citizens. Although Respondent and Petitioner never
married,

Petitioner’s

name

is

on

the

children’s

birth

certificates. (Id.).
In May of 2009, Respondent left Panama with the children and
moved to Missouri without Petitioner’s consent. Subsequently, on
May 13, 2010, Petitioner filed his first petition under the Hague
Convention, seeking the return of the children to Panama. The
District Court for the Eastern District of Missouri ordered that
Respondent return the children to Panama in September of 2010.
Fernandez v. Bailey, No. 1:10CV00084 SNLJ, 2010 WL 3522134, at *3
2

(E.D. Mo. Sept. 1, 2010), modified, No. 1:10CV00084 SNLJ, 2010 WL
5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony
conviction he received while living in the United States as a
juvenile, Petitioner was unable to obtain a visa and attend the
2010 hearing in person. Id. at *2; (Doc. # 18 at ¶ 11).
Following
Petitioner

its

had

a

hearing,

ne

exeat

the
right

Missouri
under

court

Panamanian

found
law,

that
which

qualified as a right of custody under the Hague Convention and
entitled Petitioner to prevent the children’s removal from Panama
without his consent. Fernandez, 2010 WL 3522134, at *2. That court
found that Respondent breached that right by removing the children
to Missouri. Id.
At that time, Respondent argued that Petitioner had verbally
and physically abused her and thus posed a grave risk of harm to
the children should they be returned to Panama. Although the court
found that there had been some verbal and physical abuse in the
relationship

between

Petitioner

and

Respondent,

the

court

determined that Petitioner had not abused the children and did not
pose a grave risk of harm. Id. at *3. Therefore, the court ordered
that Respondent return to Panama with the children to pursue
custody proceedings there.
Pursuant to the Missouri court’s order, Respondent returned
to Panama with the children. In Panama, Petitioner initiated
custody proceedings and criminal charges against Respondent for
3

the previous removal of the children. Pursuant to the ongoing
custody proceedings, Petitioner had visitation rights to visit
with the children every other weekend. Because of the contentious
relationship between the parents, the Panamanian court designated
a local children’s police station as the drop-off and pick-up
location for these visits.
During this time, Respondent filed restraining orders against
Petitioner, after reporting to the police that Petitioner had
attempted to strangle her, and tried to run over Respondent and
the children with his car. (Respondent’s Ex. 27, 28). However,
Respondent conceded that the restraining orders did not require
Petitioner to stay away from the children. Although he denied the
allegations of abuse, Petitioner acknowledged that the restraining
orders were in place.
In January of 2013, Petitioner violated the visitation order
by refusing to return the children to Respondent following a
weekend visit. Petitioner lived with the children and enrolled
them in a Montessori School. The children remained in Petitioner’s
custody and attended that school until March 20, 2013.
On March 20, 2013, Respondent had the children removed from
their school by the Panamanian police, who took the children to a
courthouse

where

a

judge

ordered

Respondent.

4

their

children’s

return

to

Petitioner has not had any communication or visitations with
the children following the Respondent’s retrieval of the children
on March 20, 2013. Petitioner testified that Respondent never
brought the children to the designated children’s police station
for

visitation.

accompanied

Furthermore,

the

Panamanian

Petitioner
police

on

testified
three

that

he

occasions

to

Respondent’s apartment in Panama to determine if Respondent and
the children were living there; but, the police were unable to
enter Respondent’s apartment and were told by building security on
their third attempt that Respondent and the children had moved
away. In contrast, Respondent testified that she brought the
children to the designated drop-off location for visitation on six
occasions, but Petitioner never came.
Pursuant to the criminal proceedings against Respondent, an
exit restriction was put into effect in January of 2013, to prevent
Respondent from leaving Panama with the children a second time.
(Petitioner’s Ex. 8). Yet, on February 2, 2014, Respondent and the
children flew from Panama to Tampa, Florida. Petitioner submitted
into evidence a letter to the Panamanian National Migration Service
dated

January

27,

2014,

and

signed

with

Petitioner’s

name.

(Petitioner’s Ex. 31). The letter, which Petitioner alleges is a
forgery, states that Petitioner gives his consent for the children
to leave Panama with Respondent on February 2, 2014. Respondent

5

denied knowledge of the letter and conceded that Petitioner never
consented to the children’s removal from Panama.
Upon their arrival in Florida, Respondent and the children
initially lived in an apartment in St. Petersburg, Florida, but
later moved to an apartment in Tampa that is located in a better
school district. Respondent stated that she and the children have
resided in the Tampa apartment since April of 2015, and presented
copies of the lease agreement. (Respondent’s Ex. 2). The children
are enrolled in second grade at a local public elementary school
and

participate

in

extracurricular

activities.

Respondent

is

employed full-time and financially provides for the children.
Petitioner

disputed

the

number

of

locations

at

which

Respondent has lived with the children since coming to Florida in
February of 2014. Petitioner claimed that Respondent first resided
in Tallahassee, Florida, after arriving from Panama in February of
2014, before later moving to St. Petersburg, and Tampa. According
to Petitioner, these moves were designed to conceal the children
from him. Additionally, Petitioner alleged that Respondent used
aliases and maintained two driver’s licenses in different names,
to further hide the children’s whereabouts.
Respondent denied the use of aliases and testified that she
has not lived in Tallahassee, Florida, since 2006. Respondent
presented copies of leases for apartments in St. Petersburg and
Tampa

in

her

name.

Respondent
6

provided

bills

and

her

car

registration,

all

in

her

name.

(Respondent’s

Ex.

2,

3).

Additionally, the children were enrolled in school under their own
names, and Respondent used her real name to register the children
for extracurricular activities. (Respondent’s Ex. 4, 5, 13).
Meanwhile,

back

in

Panama,

Petitioner

was

unaware

that

Respondent and the children had moved to Florida. Before learning
that the children were in the United States, Petitioner tried to
locate the children and press charges against Respondent in Panama.
Unsatisfied with the progress made by his previous attorney,
Petitioner hired a new attorney, Mr. Toribio Castillo, in September
of 2014. Mr. Toribio Castillo petitioned a Panamanian court to
provide

Petitioner

with

immigration

and

other

public

records

regarding the children. Subsequently, in late January of 2015, the
Panamanian immigration authorities informed Petitioner that the
children had left Panama nearly a year earlier on February 2, 2014.
Petitioner then filed a Hague Convention application at the
United States Embassy in Panama in late February of 2015. The
United States Department of State provided information regarding
the location of the children to Petitioner, eventually disclosing
the children’s current location in Tampa, Florida. The Department
of State also mailed letters to Respondent, notifying her of
Petitioner’s Hague Convention application, which Respondent denies
receiving.

7

II.

Procedural History

On August 24, 2016, Petitioner filed his Verified Petition
for Return of Children to Panama (Doc. # 1), requesting that this
Court order the return of the children to Panama following a
hearing on the petition’s merits. On the basis of the Verified
Petition,

the

Court

issued

its

Order

Granting

Temporary

Restraining Order Under the Hague Convention on August 25, 2016.
(Doc. # 2). That Order prohibited Respondent from removing the
children from this Court’s jurisdiction pending an evidentiary
hearing on the merits of the Verified Complaint. In response,
Respondent filed her amended Answer (Doc. # 15), denying many of
Petitioner’s

allegations

and

invoking

three

exceptions

to

repatriation contained in the Hague Convention.
At the hearing, held between September 12, 2016, and September
14, 2016, Petitioner and Respondent were represented by counsel
and both gave sworn testimony. Each side also presented additional
witnesses.

The

Court

allowed

Petitioner

and

his

Panamanian

attorney, Mr. Toribio Castillo, to testify via contemporaneous
video transmission. Furthermore, the Court held an in camera
interview with the children, during which the Court asked the
children about their lives in Florida and the possibility of
returning to Panama, in order to determine the applicability of
the various affirmative defenses raised by Respondent.

8

III. The Hague Convention and ICARA
“The Hague Convention was enacted to ‘secure the prompt return
of children wrongfully removed to or retained in any Contracting
State.’” Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004).
Under the terms of the Hague Convention, courts strive to decide
the merits of return petitions within six weeks. Hague Convention,
art. 11. “The convention is intended as a rapid remedy for the
left-behind parent to return the status quo before the wrongful
removal or retention.” Id. “The Court’s inquiry is limited to the
merits of the abduction claim and not the merits of the underlying
custody battle.” Id. (citing 42 U.S.C. § 11601(b)(4)). Panama is
a contracting state within the meaning of Article I of the Hague
Convention. Fernandez, 2010 WL 3522134, at *1.
Recently, the Supreme Court has stated, “[w]hen a parent
abducts a child and flees to another county, the Hague Convention
on the Civil Aspects of International Child Abduction generally
requires that country to return the child immediately if the other
parent requests return within one year.” Lozano v. Montoya Alvarez,
134 S. Ct. 1224, 1228 (2014). The children were removed from Panama
on February 2, 2014. Because the Verified Petition was filed on
August 24, 2016, the Petition is outside the one-year period.
However, the expiration of the one-year period does not prevent
the return of children under the Hague Convention. It merely

9

introduces the children’s interest in settlement as a factor in
the Court’s decision. Id. at 1234.
IV.

Prima Facie Case

Petitioner

bears

the

burden

of

establishing,

by

a

preponderance of the evidence, that his children were “wrongfully
removed or retained within the meaning of the Convention.” Ruiz,
392 F.3d at 1251 (citing 42 U.S.C. § 11603(e)(1)(A)).
prevail,

Petitioner

must

prove

that:

(1)

the

In order to

children

were

“habitual residents” of Panama at the time Respondent wrongfully
removed the children to the United States; (2) the removal was in
breach of Petitioner’s custody rights under Panamanian law; and
(3) he had been exercising those rights at the time of removal.
Ruiz, 392 F.3d at 1251. However, the establishment of a prima facie
case by Petitioner does not conclude this Court’s analysis. Rather,
Respondent then may prove, as an affirmative defense, that one of
the

narrow

exceptions

to

repatriation

included

in

the

Hague

Convention applies. Lops v. Lops, 140 F. 3d 927, 936 (11th Cir.
2004).

Respondent

has

argued

that

three

different

exceptions

apply, which the Court will address after its analysis of the
Petitioner’s prima facie case.
Here, Petitioner and Respondent agree that the children were
habitual residents of Panama at the time of their removal to Tampa,
Florida, in February of 2014. Additionally, Respondent concedes
that

Petitioner

had

custody

rights
10

at

the

time

of

removal,

including

visitation

rights,

allowing

visitation

every

other

weekend, as well as a ne exeat right under Panamanian law. Thus,
the only disputed element of Petitioner’s prima facie case is
whether Petitioner was exercising his rights of custody at the
time of the children’s removal from Panama in February of 2014.
Although

the

removal

of

the

children

was

in

breach

of

Petitioner’s custody rights under Panamanian law, Petitioner still
must show that he was exercising those rights at the time of the
removal or would have exercised those rights but for the removal.
See Ruiz, 392 F.3d at 1251. A court is not bound to order the
return of a child if the respondent demonstrates by a preponderance
of the evidence that the person having care of the child was not
exercising

rights

of

custody

at

the

time

of

the

removal

or

retention of the child. Hague Convention, art. 13(a); 22 U.S.C. §
9003(e)(2)(B).
While the Hague Convention does not define the “exercise” of
rights of custody, courts “liberally find exercise whenever a
parent with de jure custody rights keeps, or seeks to keep, any
sort of regular contact with his or her child.” Friedrich v.
Friedrich, 78 F.3d 1060, 1065 (6th Cir. 1996). The Sixth Circuit
has stated that “if a person has valid custody rights to a child
under the law of the country of the child's habitual residence,
that person cannot fail to ‘exercise’ those custody rights under

11

the Hague Convention short of acts that constitute clear and
unequivocal abandonment of the child.” Id. at 1066.
Under the Hague Convention, visitation rights are rights of
access, rather than rights of custody. Tsai-Yi Yang v. Fu-Chiang
Tsui, 499 F.3d 259, 275 (3d Cir. 2007). Rights of access “include
the right to take a child for a limited period of time to a place
other than the child's habitual residence.” Hague Convention, art.
5(b). In contrast, Article 5(a) of the Convention specifies that
rights of custody “include rights relating to the care of the
person of the child and, in particular, the right to determine the
child’s place of residence.” Rights of access, like visitation
rights, receive less protection under the Convention than custody
rights. “When custody rights are violated, a court can order that
the child be returned to his or her habitual residence, while a
court cannot order the return of a child when access rights are
violated.” Tsai-Yi Yang, 499 F.3d at 275.
Petitioner and Respondent focused much of their testimony on
the lack of communication and missed visitations during the ten
month period from March 20, 2013, to February 2, 2014, the date
the children came to Florida. During this time, the children
resided with Respondent in Panama but had no visitations or other
contact with Petitioner. As discussed above, visitation rights are
not rights of custody under the Hague Convention. However, the
Court addresses Petitioner’s exercise of these rights to the extent
12

that the exercise of visitation rights provides insight into
whether Petitioner was also exercising or would have exercised his
right of custody, the ne exeat right, at the time of the children’s
removal from Panama.
Petitioner

testified

that

he

attempted

to

exercise

his

visitation rights during the ten month period before the children
moved to Florida. According to Petitioner, he went every weekend
to the visitation drop-off location to wait for Respondent and the
children, who never came. But Respondent testified that it was
Petitioner who did not come to pick up the children for visitation.
According to her, Respondent and the children waited at the dropoff location during the first six visitation weekends after the
children were returned to Respondent on March 20, 2013.
Furthermore, a restraining order against Petitioner was in
effect at this time. Petitioner testified that he did not call
Respondent

or

accompaniment

approach
of

her

Panamanian

at

her

apartment,

authorities,

because

without
he

the

feared

Respondent would have him arrested. Respondent insisted that, in
reality, the restraining order would not have led to Petitioner’s
arrest if he contacted her in an attempt to see the children.
Indeed, Respondent asserted that Petitioner had violated previous
restraining orders before March 20, 2013, without ever being
arrested. However, Respondent admitted that calls from Petitioner

13

or Petitioner’s unannounced appearance at Respondent’s home, in
theory, could result in his arrest.
Given the conflicting testimony, the Court does not find that
the lack of visitation or other contact between Petitioner and the
children between March 20, 2013, and February 2, 2014, support the
conclusion that Petitioner had abandoned the exercise of all his
parental rights, including his ne exeat right, at the time of the
children’s removal from Panama.
Rather, the Court finds that Petitioner was exercising his ne
exeat

right,

or

would

have

exercised

that

right

but

for

Respondent’s removal of the children from Panama. A ne exeat right
is “the authority to consent before the other parent may take the
child to another country.” Abbott v. Abbott, 560 U.S. 1, 5 (2010).
As the District Court for the Eastern District of Missouri found
in 2010, Petitioner’s ne exeat right under Panamanian law, “The
Immigration Authorities, Title II, of Decree Law No. 3, Article
40,” is a “right of custody” recognized under the Hague Convention.
Fernandez, 2010 WL 3522134, at *2; see also Abbott, 560 U.S. at 15
(holding that a ne exeat right under Chilean law was a right of
custody under the Hague Convention). Furthermore, that court found
that Petitioner was exercising, or would have exercised, his ne
exeat right to prevent Respondent from leaving Panama with the
children at the time of the children’s 2009 wrongful removal.
Fernandez, 2010 WL 5399220, at *2.
14

The Supreme Court has explained the exercise of the ne exeat
right as follows:
[A] ne exeat right is by its nature inchoate and so has
no operative force except when the other parent seeks to
remove the child from the country. If that occurs, the
parent can exercise the ne exeat right by declining
consent to the exit or placing conditions to ensure the
move will be in the child's best interests.
Abbott, 560 U.S. at 13. Thus, “[w]hen one parent removes the child
without seeking the ne exeat holder's consent, it is an instance
where the right would have been ‘exercised but for the removal or
retention.’” Id.
Furthermore, in this case, Petitioner had an exit restriction
put in place with the Panamanian Immigration Authority to prevent
Respondent from leaving Panama with the children. (Petitioner’s
Ex. 8). Therefore, the Court finds that Petitioner was exercising
his right of custody at the time of the children’s removal from
Panama, or would have done so but for the wrongful removal.
V.

Affirmative Defenses
As mentioned previously, the Hague Convention includes a

number of exceptions to the return of children to the country from
which they were wrongfully removed. Respondent has argued that
three exceptions apply: the grave risk of harm, mature objection,
and

well-settled

exceptions.

These

exceptions

are,

in

fact,

affirmative defenses that must be established by the removing
parent. 22 U.S.C. § 9003(e)(2). “As the Convention’s official
commentary has noted, narrow interpretations of the exceptions are
15

necessary to prevent them from swallowing the rule . . .” Gomez v.
Fuenmayor, 812 F.3d 1005, 1011 (11th Cir. 2016).
Furthermore, “a court always retains discretion to order
repatriation

notwithstanding

the

applicability

of

any

Hague

Convention exception if that would best fulfill the purposes of
the Convention.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 204
(E.D.N.Y. 2010), aff'd, 401 F. App'x 567 (2d Cir. 2010).
A. Grave Risk Of Harm
Under Article 13b of the Hague Convention, a court “is not
bound to order the return of the child if . . . there is a grave
risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation.” Hague Convention, art. 13b. This exception must be
proved by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
Additionally,

“to

invoke

the

defense,

the

party

seeking

to

establish the exception must ‘show that the risk to the child is
grave, not merely serious.’” Gomez v. Fuenmayor, 812 F.3d 1005,
1012 (11th Cir. 2016)(citation omitted).
As the Sixth Circuit described, grave risks of harm typically
fall within one of two categories:
First, there is a grave risk of harm when return of the
child puts the child in imminent danger prior to the
resolution of the custody dispute—e.g., returning the
child to a zone of war, famine, or disease. Second, there
is a grave risk of harm in cases of serious abuse or
neglect, or extraordinary emotional dependence, when the
court in the country of habitual residence, for whatever
16

reason, may be incapable or unwilling to give the child
adequate protection.
Friedrich, 78 F.3d at 1069.
The evaluation of an alleged grave risk of harm should focus
on the risk faced by the child, not the parent. However, the
Eleventh Circuit recognizes that “sufficiently serious threats and
violence directed against a parent can nonetheless pose a grave
risk of harm to a child as well.” Gomez, 812 F.3d at 1010.
The Court finds that the children would not be at a grave
risk of harm if returned to Panama. No doubt the relationship
between Petitioner and Respondent is antagonistic. But Respondent
has failed to show by clear and convincing evidence that Petitioner
presents a grave risk to the children. The Court did not find
Respondent’s testimony regarding Petitioner’s alleged physical
abuse of the children and herself credible. Respondent alleged
that Petitioner tried to run over Respondent and the children as
she

walked

them

into

their

nursery

school.

Furthermore,

she

testified that on a few occasions after picking up the children
from their weekend visitation with Petitioner she noticed injuries
to the children, including bruises on their arms, scratches to
their stomachs, and belt marks on their backs. However, Respondent
did not present medical or police documentation of the children’s
injuries.
To bolster her grave risk of harm defense, Respondent produced
as a witness Ms. Gloria Mercedes Martinez-Jimenez, who worked as
17

the children’s nanny in Panama and currently works for Respondent
as the children’s live-in nanny in Florida. Ms. Martinez-Jimenez’s
testimony supported Respondent’s allegations of abuse, by noting
the bruises she observed on the children after their visitations
with

Petitioner.

immigration

However,

status,

given

home,

and

that

Ms.

Martinez-Jimenez’s

income

are

all

dependent

on

Respondent, the Court did not find her claims regarding injuries
to the children credible.
Therefore, Respondent has not established the grave risk of
harm exception by clear and convincing evidence.
B. Mature Obejction
Regarding
provides:

“The

the

mature

judicial

objection

or

exception,

administrative

the

Convention

authority

may

also

refuse to order the return of the child if it finds that the child
objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of [his]
views.” Hague Convention, art. 13. This exception must be proved
by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).
The Convention provides no specific age at which a child is
deemed sufficiently mature and decisions applying this exception
vary widely. Tsai-Yi Yang, 499 F.3d at 279. Courts disagree as to
whether eight year old children are sufficiently mature.
Importantly, the mature objection of a child must address his
or her particularized reasons for wishing to remain in their new
18

country, rather than the child’s preference for the parent with
whom he or she wishes to live. Haimdas, 720 F. Supp. 2d at 208
(“[child who was nearly ten years old] sees this as a choice of
which parent he wants to live with, not which country he wants to
grow up in; his stated preference to remain in New York is not a
particularized, mature objection that should be part of the Court's
Hague Convention analysis.”); cf. Ago v. Odu, No. 8:09–cv–976-T17TBM, 2009 WL 2169857, at *14 (M.D. Fla. Jul. 20, 2009)(applying
mature child exception when “[a]s [the 14–year old child] sees it,
life is better here and he is more comfortable in his surroundings.
This is not a choice of parents but as he sees it a choice of
country.”). The length of a child’s residence with the removing
parent and the nature of the relationship between the parents are
relevant to determining whether a child’s objection is mature. See
Haimdas, 720 F. Supp. 2d at 207 (discounting child’s objection
where “the child's view of his mother has clearly been impacted by
his physical separation from her for much of his life and the
strained and often bitter relationship between his parents”). In
making its determination, a court should also consider whether a
child's desire to remain or return to a place is “the product of
undue influence,” in which case the “child's wishes” should not be
considered. De Silva v. Pitts, 481 F.3d 1279, 1286 (10th Cir.
2007).

19

Having interviewed the children in camera, the Court finds
that the children have not stated a mature objection to returning
to Panama. The children have resided solely with Respondent since
arriving in Florida in February of 2014, a large portion of an
eight year old child’s life. Additionally, given the difficult
relationship between Respondent and Petitioner, the Court does not
consider

the

children’s

in

camera

statements

regarding

their

desire to remain in the United States mature objections. Thus,
this exception does not apply.
C. Well-Settled Exception
Under the Article 12 well-settled exception, a court may
decline to return a child who was wrongfully removed more than one
year before if the respondent shows that the child is now settled
in his or her new home. Hague Convention, art. 12. This exception
must be proved by a preponderance of the evidence. 22 U.S.C. §
9003(e)(2)(B). Despite the fact-intensive inquiry involved, the
well-settled exception is a narrow affirmative defense that should
not focus on the merits of the underlying custody dispute. Thus,
“[t]he Court is not to become mired in inquiries of who is the
better parent or who occupies the nicer home. That is the role of
the courts in the place of the child’s habitual residence.” Pacheco
Mendoza v. Moreno Pascual, No. CV 615-40, 2016 WL 320951, at *1
(S.D. Ga. Jan. 26, 2016).

20

“Rather than establishing any certainty about the respective
rights of the parties, the expiration of the 1–year period opens
the door to consideration of a third party's interests, i.e., the
child’s interest in settlement.” Lozano, 134 S. Ct. at 1234. Still,
the Court remains free to consider whether the child's interest in
remaining in the new country is outweighed by other interests of
the child and the non-abducting parent, including “the child's
interest in returning to his or her original country of residence
. . . the child's need for contact with the non-abducting parent
. . . the non-abducting parent's interest in exercising the custody
to which he or she is legally entitled; the need to discourage
inequitable conduct (such as concealment) by abducting parents;
and the need to deter international abductions generally.” Id. at
1237.
To fall under this exception, “the child must have significant
connections demonstrating a secure, stable, and permanent life in
his or her new environment.” Alcala v. Hernandez, 826 F.3d 161,
170 (4th Cir. 2016)(affirming denial of return petition where child
was doing well in school, had a network of relatives and friends,
and was financially stable in South Carolina). A court should
consider the totality of the circumstances regarding a child's
welfare to determine if that child is well-settled. Id. The United
States Department of State has concluded that “nothing less than
substantial evidence of the child's significant connections to the
21

new country is intended to suffice to meet the respondent's burden
of proof.” State Dep't Legal Analysis § III (I)(1)(c), 51 Fed.
Reg. at 10,509 (1986).
Being “well-settled” means “more than having a comfortable
material existence.” Lops, 140 F.3d at 946. A court looks at a
number of relevant factors including the circumstances surrounding
the

children's

abducting

living

parent,

the

environment,
active

the

measures

involvement

taken

to

of

the

conceal

the

children's whereabouts, and the possibility of prosecution for
conduct taken to take or conceal the children. Id. Furthermore,
the Court will also look to the following factors:
the age of the child; the stability of the child's
residence in the new environment whether the child
attends school or day care consistently; whether the
child attends church or other religious institutions
regularly;
the
stability
of
the
[Respondent]'s
employment; and whether the child has friends and
relatives in the new area.
Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012), aff'd sub nom.
Lozano

v.

Montoya

Alvarez,

134

S.

Ct.

1224

(2014)(affirming

district court’s finding that five year old child was settled in
new environment and declining to order the child’s return). These
factors are non-exhaustive and a court may consider all types of
evidence in making its determination. Alcala, 826 F.3d at 170
(“Given

the

lack

of

any

textual

limitation

[in

the

Hague

Convention], courts should consider any relevant circumstance that

22

demonstrates security, stability, or permanence — or the lack
thereof — in a child's new environment.”).
Generally, an older child has a greater interest in settlement
in their new environment, because older children are “more likely
to have memories of the United States and more ties to the
country.” Taveras v. Morales, 22 F. Supp. 3d 219, 236 (S.D.N.Y.
2014), aff'd sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F.
App'x 55 (2d Cir. 2015)(denying repatriation of an eight year old
child who had been in the United States for over fifteen months);
see also In re Robinson, 983 F. Supp. 1339, 1345 (D. Colo.
1997)(finding children settled where they were “old enough to allow
meaningful connections to the new environment to evolve” and had
built such connections).
Additionally, a child who has spent a long period of time in
their new environment is more likely to be well-settled. “As time
passes a child becomes increasingly settled or connected to its
new environment and delayed return may itself become the second
harmful disruption.” In re Robinson, 983 F. Supp. at 1345. Here,
the children are eight years old and have lived in the Tampa Bay
area for a period of over two and a half years, beginning in
February of 2014. This is a significant period of time in the life
of a child, especially because the children are old enough to
develop connections to their environment through their school,
activities, and relatives.
23

Frequent moves between different residences or cities can
prevent a child from becoming settled in a new environment, even
if the child has lived away from his country of habitual residence
for a long period of time. However, the fact that a child has
resided in more than one residence during their stay in a new
environment is not fatal to the well-settled defense. Where moving
is

infrequent

and

improves

the

child’s

quality

of

life

and

stability, courts have found that this factor does not weigh
against finding a child well-settled. See Alcala, 826 F.3d at 172
(finding that respondent’s two moves after arriving in South
Carolina did not show instability because “each move appears to
represent part of a natural progression to an improved living
situation”). Also, changing homes within the same city or area may
have a minimal impact on a child’s daily life and sense of
permanence. Id. at 167-68 (“Although the evidence established that
she had lived with the children in three different homes in roughly
fourteen months, each home was in the same general area in South
Carolina

and

the

moves

did

not

disrupt

the

children's

daily

lives.”).
During their time in Florida, the children resided in two
locations, both in the Tampa Bay area. Respondent testified that
they moved from St. Petersburg to Tampa in order to enroll the
children in a better elementary school, because she had been
unfamiliar with the area schools when she first enrolled the
24

children in February of 2014. Though in different cities, both
residences are within the same general area - Respondent testified
that it is a twenty minute drive between them.
Furthermore,

the

children

have

built

relationships

with

Respondent’s family members since their arrival in the United
States. The majority of Respondent’s relatives live in Alabama or
Tallahassee, Florida. Respondent testified that the children have
visited their relatives several times, and presented photographs
from

family

gatherings.

(Respondent’s

Ex.

20a).

Additionally,

Respondent’s mother and stepfather are able to visit the children
frequently

in

Florida.

(Respondent’s

Ex.

20b).

Although

the

distance between the children and these relatives prevents daily
interaction, the Court finds that the children still have built a
meaningful connection with their extended family while living in
Florida.
Since enrolling in their current school in Tampa in April of
2015, the children have attended consistently and earned all
satisfactory

or

excellent

marks

on

their

report

cards.

(Respondent’s Ex. 4, 5). The elementary school has given the
children awards for good behavior and citizenship, indicating that
the boys are functioning well in school and amongst their peers.
(Respondent’s Ex. 6, 7, 11, 12). The children have made friends
and participate in extracurricular activities. While living in St.
Petersburg, they played in a local t-ball league. Later, at the
25

children’s request, Respondent registered them to play on a club
soccer team, for which they travel with their teammates and play
competitively.
enrolled

the

(Respondent’s
children

in

a

Ex.

13).

Christian

Last

summer,

summer

camp,

Respondent
where

the

children participated in adventurous activities like rock-climbing
and archery. (Respondent’s Ex. 15, 16).
In addition to the factors above, courts consider whether a
removing parent has financial resources to maintain a stable home
for the child because frequent job changes by the parent or moves
resulting from limited job opportunities influence whether a child
will develop a stable connection to their new environment. See De
La Riva v. Soto, No. 2:15-cv-615-FTM-29MRM, 2016 WL 1696539, at
*15 (M.D. Fla. Apr. 28, 2016)(finding child was not well-settled
because the child’s “financial security in the United States is
unstable, and his stay here may come to an abrupt end, since
Respondent is here illegally, without a work permit, and could be
‘subject to deportation at anytime’”). However, the Court does not
use the financial stability factor to compare whether the children
have a more comfortable material existence in Florida than in
Panama; rather, the Court looks to whether the children’s needs
are being met in their new environment. See Alcala, 826 F.3d at
167 (affirming district court’s well-settled finding where the
respondent was “clearly able to provide for the minor children”

26

and “the children were always provided adequate clothing, food,
and shelter”).
Here, Respondent is an American citizen working in a wellpaying job, which Respondent testified partially motivated her
move from Panama to Florida. She has been steadily employed since
her arrival and has sufficient financial resources to keep a livein nanny to help with child-care. The Court finds, and Petitioner
does

not

dispute,

that

Respondent

has

a

stable

career

and

adequately provides for the children.
Finally, concealment is a factor that may be taken into
account

because

concealment

tactics,

including

frequent

relocations, the use of aliases, and abstaining from school or
community activities to avoid detection, may preclude a child from
forming stable attachments. Lozano, 134 S. Ct. at 1236 (Alito, J.,
concurring). Thus, although analysis of the concealment factor
examines the removing parent’s behavior, the focus remains on the
child’s connections to their new environment.
The

Court

is

not

persuaded

that

Respondent

used

the

concealment tactics alleged by Petitioner. Regardless, if they
were used, the Court finds that these tactics have not prevented
the children from forming a permanent and stable connection to
their new environment. As discussed above, the children have
attended the same school for over a year, are enrolled in school
and extracurricular activities in their own names, and have lived
27

in only two homes in the Tampa Bay area since their arrival from
Panama over two and a half years ago. While the Court is troubled
by Respondent’s removal of the children and suppression of the
children’s relationship with Petitioner, the children are thriving
in Florida.
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. The Court is deeply
disturbed
Respondent

by

Respondent’s

has

removed

actions.
the

This

children

is
from

the

second

Panama

time

without

Petitioner’s consent. Because Petitioner had been unable to secure
a visa to attend the 2010 Hague Convention hearing because of his
prior conviction, Respondent likely knew that Petitioner could not
travel

to

the

United

States

to

search

for

the

children

or

participate in person if future custody proceedings were initiated
here. As Petitioner correctly pointed out, preventing this type of
forum-shopping by parents was a major motivation for the enactment
of the Hague Convention.
Nevertheless, the interest in discouraging wrongful removals
like that perpetrated by Respondent is not enforced at any cost
under the Hague Convention. Lozano, 134 S. Ct. at 1235. As the
Fourth Circuit has explained:
If we were to hold that wrongful removal in itself should
lead courts to exercise their retained discretion in the
face of an established Convention exception, we would
28

render that exception a nullity: a necessary predicate
to considering whether a child is “settled” is a
determination that the child was wrongfully removed; if
the latter were sufficient to warrant ordering return,
the settled determination would be meaningless.
Alcala, 826 F.3d at 175. Here, the Court finds that the children’s
interest in settlement outweighs 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.
The

Court

is

sympathetic

towards

Petitioner

and

the

difficulties he faced in locating the children; however, the fact
that Petitioner may have had a good reason to file his petition
over a year after the children’s removal does not negate the harm
that would come to the children if they were removed from their
new environment. See Anderson v. Acree, 250 F. Supp. 2d 872, 875
(S.D. Ohio 2002)(“This potential of harm to the child remains
regardless of whether the petitioner has a good reason for failing
to file the petition sooner, such as where the respondent has
concealed the child's whereabouts.”). Therefore, the Court denies
the Verified Petition and declines to order the children’s return
to Panama.
However, the Court’s Order is not a ruling on the underlying
custody dispute. Rather, the Verified Petition’s denial means that
custody proceedings will occur in Florida, in order to minimize
the disruption of the children’s lives.
29

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Petitioner Roque Jacinto Fernandez’s Verified Petition
for Return of Children to Panama (Doc. # 1) is DENIED.

(2)

The Clerk is directed to CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this 21st day
of September, 2016.

30