Father Tries to Get Sons Back From the Philippines

John Lee Smith keeps a bag ready, just in case.

It’s packed with Spiderman watches, a dinosaur hairbrush, new clothes and action figures -- everything his three sons would need on a trip back home.

Smith hasn’t seen or heard from the boys in more than a year, since, he said, their mother, Francina Fernandez, abducted them and fled to the Philippines.

Since then, his life has been frozen in place, his San Diego apartment a monument to their memory. Photographs of Keoni, 5, and twins Lance and Mason, 4, fill the rooms. Their stuffed animals sit on his bed. Their art projects -- snowmen and spiders -- cover his bedroom walls.

“There is not even a word to describe the anguish I feel,” Smith said. “When am I going to see my boys again? Is it going to be five years? Is it going to be five months?”

Hundreds of American parents face a similar plight, fighting from within the United States to bring home children they say were kidnapped and taken abroad by the other parent. The U.S. State Department is handling roughly 1,000 international parental kidnapping cases, including seven that involve children taken to the Philippines.

Many parents left behind face linguistic, cultural, geographical and legal barriers. Often, the spouse is a citizen, or can become a citizen, of the country to which he or she has fled and is entitled to that country’s protection.

In the United States, Fernandez faces federal charges of international parental kidnapping that could land her behind bars for up to three years.

But FBI agents in Manila do not know exactly where she is. And even if they locate her, agents lack the authority to arrest her or take the boys. Fernandez has reclaimed her Philippine citizenship.

The Philippines sees parental kidnapping as a custody dispute, not a crime. And the country isn’t party to the international treaty that created a process for resolving such disputes.

“Where does that country get the right to make decisions regarding my three little boys, who are U.S. citizens?” Smith asked. “The message they are sending out is, ‘Kidnap your child and come to the Philippines’ .... It’s basically a safe haven.”

The Philippine government says it cooperates with U.S. law enforcement and consular officials to locate children alleged to have been abducted and check on their welfare. The officials also can help negotiate a return. But in many cases, the decision on whether the children should be sent back to the parent in the United States falls to the courts.

“It’s irresponsible to paint the Philippine government as ... a coddler of criminals,” said Patricia Paez, spokeswoman for the Philippine Embassy in Washington, D.C. “A parent could accuse the other parent of kidnapping, but that’s for the courts to determine.”

*

The last time Smith saw his sons was Oct. 28, 2004, his 47th birthday.

A week later, Fernandez, who was living with her parents in nearby Chula Vista, told him over the phone that she planned to take the boys on vacation to New Zealand. Smith called his attorney, who went to court to object to the trip.

It was one of many conflicts between the couple, who had joint custody of the boys. They split up when the twins were a year old, and the acrimony had been growing ever since, with arguments over child support, visitation and day care.

Smith blamed cultural differences -- and her parents -- for the breakup and later disputes.

“I knew she was going to abduct the boys,” Smith said. “There was not one ounce of doubt in my mind.”

A judge ordered Fernandez not to take the children out of the state. He also ordered her to surrender their passports within 24 hours. She didn’t.

A few days later, Fernandez’s mother reported to police that her daughter and grandsons had disappeared.

Smith learned through the FBI that Fernandez had flown to Manila with the boys Nov. 8. A warrant was issued for her arrest.

Reached by telephone, Fernandez’s mother, Sonia, said she believes her daughter left the country to “protect the boys.” Francina Fernandez had accused Smith of abusing his sons but, according to court documents, the Juvenile Court dismissed the allegations.

In the court papers, Fernandez also said Smith had “anger-management issues” and that his parental judgment was “highly questionable.”

Francina Fernandez’s family law attorney, Marilyn Bierer, said she was surprised to learn that her client had left the country with her sons. “There is no justification for what she did,” she said. “There are always two sides to every story, and the truth lies somewhere in the middle.”

A tall, muscular surfer and self-described “perpetual bachelor,” Smith had never expected to become a father. He was middle-aged when his sons were born. Soon, he said, he was changing diapers and rocking them to sleep.

“My life was my boys,” he said. “They loved being with me, and I loved being with them.”

As his sons grew older, they all rode bikes and skipped rocks together; they visited Chuck E. Cheese’s and SeaWorld.

“When I heard them call, ‘Daddy!’ it was better than any wave I have ever surfed,” he said.

After his sons were taken, Smith rarely left the house. He took a leave from his job as a contractor.

“I kept praying ... the phone would ring,” he said.

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Trying to recover a child kidnapped by a parent to another country is arduous -- and sometimes futile, advocates and attorneys said.

U.S. custody orders frequently are not honored overseas. And like the Philippines, many nations consider parental kidnapping a civil matter. In addition, the abducting parents are usually at an advantage, because they often have a network of relatives or friends who can support them or help them hide.

The cases can last for years, said Julia Alanen, director of the international division of the National Center for Missing & Exploited Children. “It’s an uphill battle,” Alanen said. “But we keep trying and eventually, in a good number of these cases, we find a solution.”

For the parents left behind, the struggle to get their children back is overwhelming, both emotionally and financially.

“It’s absolutely the worst nightmare you can experience,” said Georgia Hilgeman-Hammond, executive director of Vanished Children’s Alliance, a San Francisco Bay Area organization that helps parents through the process.

Even if parents get their children back, it’s not always as they had imagined, Hilgeman-Hammond said. Often, the children have been told that the parent left behind died or didn’t want to see them anymore.

Despite good intentions, U.S. law enforcement authorities sometimes have little to offer. Even if they are able to issue a warrant for the abducting parent’s arrest, executing it often depends on whether the foreign country is willing to cooperate and has an extradition treaty with the United States.

U.S. parents have more success if their children are taken to countries that have signed the Hague Convention treaty on international child abductions. The treaty says that custody cases generally should be decided in the child’s country of “habitual residence” -- generally where the child has been living and has a social network.

Seventy-six countries have signed the convention, but some do not abide by it, the State Department said.

“There are some cases that are very difficult,” said Catherine Barry, deputy assistant secretary at the State Department. “And despite a lot of effort, there is no resolution to the satisfaction of the U.S. parent.”

Nearly a year after his sons disappeared, Smith decided he couldn’t wait anymore.

He had heard stories of other parents who successfully re-abducted their children. He made reservations for a flight to the Philippines, thinking he’d give it a try.

But an FBI agent talked Smith out of it, saying he would jeopardize the agency’s efforts to recover the boys.

“As much as I want to be this bravado father, I also have to be smart,” he said.

Smith has tried nearly everything else. He has called the police, FBI, Department of State, media, National Center for Missing & Exploited Children and Philippine Embassy. He has offered a $10,000 reward for his sons’ safe return.

Smith contacted Sen. Diane Feinstein (D-Calif.), who wrote letters to the Philippine ambassador and Secretary of State Condoleezza Rice.

Just before Christmas, Fernandez contacted Philippine authorities and began negotiations about a possible return, according to the FBI. Smith went out to buy his boys Spiderman shoes as presents. It’s mysterious to him, and the bureau, why it fell through. Fernandez stopped negotiating and his boys never arrived. “I was crushed,” he said.

Then Smith’s case hit yet another hurdle. Fernandez has obtained Philippine citizenship for her sons, according to the FBI. That rules out her deportation from the Philippines and can make it harder to negotiate the children’s return.

Smith is convinced a custody case in the Philippines wouldn’t go his way. He has gained full custody in the U.S. but knows that probably doesn’t matter in the Philippines. His wife was born there and speaks the language. In addition, Philippine law favors the mother if the children are under 7 years old.

“It doesn’t take a rocket scientist to figure that out,” he said. “Who is going to get the better shake over there?”

*

Smith said he will never stop searching for his sons. He feels some comfort knowing that the boys are together -- and that they were not kidnapped by a stranger.

“At least I know Francina loves the boys and isn’t going to hurt them,” he said.

With his sons gone, Smith throws himself into work. He also takes solace in the ocean. Often, he goes to the beach to watch the sunset and think about his sons waking up in the Philippines about the same time.

Occasionally, he pulls out the family videos. On a recent afternoon, he sat on the floor in front of the television. As his boys appeared on the screen, he wiped his eyes without looking away.

Wearing life jackets, Mason and Keoni smile as they each plunge into a swimming pool.

“Batman jump!” Mason yells.

“Superman jump!” Keoni yells.

“Look at your brothers,” Smith says from behind the camera, as he pans over to Lance, standing on the other side of the pool. “You don’t want to jump in?”

“No,” Lance responds, prompting Smith to chuckle at his son’s independence.

A few seconds later, the video shows Keoni, lying face-down on his towel.

He turns his head toward the camera and says, “I love you, Daddy.”