Case: 16-16387 Date Filed: 11/20/2018 Page: 1 of 24 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16387 ________________________ D.C. Docket No. 8:16-cv-02444-VMC-TGW ROQUE JACINTO FERNANDEZ, Petitioner-Appellant, versus CHRISTY NICOLE BAILEY, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (November 20, 2018) Before MARTIN, JORDAN, and WALKER, ∗ Circuit Judges. WALKER, Circuit Judge: ∗ John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation. Case: 16-16387 Date Filed: 11/20/2018 Page: 2 of 24 The American mother of the twin boys at the center of this case abducted them twice from Panama before they were six years old. After the first abduction, when they were infants, a Missouri court ordered their return to their native Panama under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or Convention). The second time, when the boys were five and while custody proceedings were underway in Panama, their mother abducted them and took them to Tampa, Florida. It took their Panamanian father, Roque Jacinto Fernandez, two and one-half years to find them. When he petitioned the district court for their return this time, the district court denied the petition, finding that in the little over two years that the children had been in Florida they had become so settled that an exception to the Hague Convention’s general principle of return applied. The father appealed to this court, arguing in relevant part that the district court erred by declining to exercise its discretion to order return, even if the children were settled, because of the mother’s repeated abduction of the boys. We agree with the father that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother’s second abduction. Accordingly, we VACATE the district court’s denial of the petition for removal, and REMAND to the district court to grant the petition 2 Case: 16-16387 Date Filed: 11/20/2018 Page: 3 of 24 and enter a judgment ordering the children returned to Panama so custody proceedings can continue. I. BACKGROUND On May 15, 2009, American Christy Bailey (“the mother”) fled Panama with her two nine-month-old sons without telling the boys’ father, Roque Jacinto Fernandez (“the father”). 1 After he found the mother and boys living in Cape Girardeau, Missouri, the father petitioned in the District Court for the Eastern District of Missouri (Limbaugh, J.) seeking the return of the boys to Panama under the Hague Convention. See Fernandez v. Bailey, No. 1:10CV00084 SNLJ, 2010 WL 3522134 (E.D. Mo. Sept. 1, 2010), modified, No. 1:10CV00084 SNLJ, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). 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 followed the order and ...
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