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Court: Tampa judge erred in not returning abducted boys to father in Panama

U.S. District Judge Virginia Hernandez Covington at a 2018 luncheon hosted by the Bench Bar Fund Committee of Tampa's U.S. District Court. [Courtesy of Keith Lindquist]
U.S. District Judge Virginia Hernandez Covington at a 2018 luncheon hosted by the Bench Bar Fund Committee of Tampa's U.S. District Court. [Courtesy of Keith Lindquist]
Published Dec. 21, 2018

TAMPA - An American mother twice removed her twin sons from their Panamanian father against the orders of a court. A Tampa federal judge said that was wrong.

But the judge let the mother keep the kids anyway because she said they had become too "settled" in Florida.

Last month, an appeals court said U.S. District Judge Virginia Hernandez Covington erred in letting the mother keep 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," wrote a three-judge panel of the U.S. Court of Appeals for the 11th Circuit.

The appellate decision is yet another turn in the unusual, perplexing, long-running child custody dispute that has spanned national boundaries.

But in its wake comes another new wrinkle: the mother says the father is now in prison overseas.

The events at the root of the case began in 2009.

The mother, Christy Bailey, was an American citizen working in Panama when she fled the country that year with her two infant sons. She didn't tell their father, Roque Fernandez, a Panamanian citizen.

He later found Bailey had taken their sons to Missouri. In 2010, he asked a court there to return the boys to Panama. The court ruled in his favor, citing the Hague Convention, an international treaty that provides for the return of children who are wrongfully taken abroad by their parents.

Bailey followed the court's order and returned to Panama. But the couple's animosity continued. In a Panamanian court, the mother alleged abuse, at one point claiming the father tried to run over her and the children with a car. He denied it.

Fernandez had periodic visits with the boys and pursued full custody. Then in 2013, he kept the boys for two months before a court ordered them returned to Bailey.

A year later, Bailey again took the children to the U.S. without telling Fernandez. The boys are dual Panamanian and American citizens. Fernandez later claimed Bailey presented a forged letter to Panamanian immigration officials falsely stating he gave permission for the boys to leave.

Bailey moved to St. Petersburg, and later to Tampa. She enrolled the boys in school and signed them up for youth sports and camps.

Fernandez found them in 2016. He petitioned the U.S. District Court in Tampa for their return.

The case was the subject of a three-day hearing that year in front of Judge Covington.

Part of Bailey's argument centered on an exemption to the Hague treaty, which says the abducting parent may prevent the children from returning if it's demonstrated that the kids are "settled" in their new home. Essentially, that means the child's life in their new country is stable enough that their return would be to their detriment.

But even if the child is "settled," a judge has discretion over whether it's appropriate to order a return.

"While the court is troubled by (the mother's) removal of the children and suppression of the children's relationship with (the father), the children are thriving in Florida," Covington wrote. "The children's interest in settlement in this case outweighs the other interests that would be served by returning the children to Panama."

But the appeals court said Covington committed "a clear error of judgement."

"We believe that the district court abused its discretion by not sufficiently weighing the audacity (and significance) of the second wrongful removal," U.S. Circuit Judge John M. Walker wrote. The court ordered the children sent back to Panama.

Brandon Faulkner, one of the attorneys with Holland & Knight who represented Fernandez, said the appellate decision is bit of a rarity.

"It's somewhat of a longshot, when an appeals court takes an appeal, to achieve a reversal," he said.

The firm handled the case on a pro bono basis.

"We believe the issues in this case are interesting and challenging," he said. "It's important for countries to respect each other's rights in issues of child custody."

Bailey's attorney, Ashley Taylor, did not return a call for comment. She has asked for the full 12-member court to reconsider the case. She also brought a letter to the court's attention.

It's written in Spanish, dated Dec. 6, 2018, and signed by an official with the Panamanian prison system. Translated to English, it says that Fernandez has been jailed since May on a charge of "aggravated possession of drugs."

What effect, if any, that might have on the case is unclear.

"I do know that he has not been convicted of anything," Faulkner said.

For the time being, the children remain with their mother.

Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.

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