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Campomanes Flores v. Elias-Arata

United States District Court, M.D. Florida, Jacksonville Division

February 14, 2018

MIGUEL BENITO CAMPOMANES FLORES, Petitioner,
v.
MARIA FERNANDA ORBEGOSO ELIAS-ARATA, Respondent.

          ORDER

          MARCIA MORALES HOWARD, UNITED SLATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on Respondent's Motion to Dismiss Verified Petition for Return of Minor Child (Doc. 11; Motion), filed on February 13, 2018.[1] Petitioner Miguel Benito Campomanes Flores (Father) initiated this action on January 25, 2018, by filing the Verified Petition for Return of Minor Child to Petitioner and Petition for Immediate Issuance of Show Cause Order to Respondent (Doc. 1; Verified Petition). Father filed the Verified Petition pursuant to The Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq.[2]In the Motion, Respondent Maria Fernanda Orbegoso Elias-Arata (Mother) moves to dismiss the Verified Petition for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Upon review, the Court finds that the Verified Petition undoubtedly states a claim for wrongful retention under the Hague Convention, and as such, the Motion is due to be denied.[3]

         I. Standard of Review

         In ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)), the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[, ]” the complaint should “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         A “plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that “[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680-81. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570).

         II. Applicable Law

         The purpose of the Hague Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” See Convention, pmbl. “The Convention generally intends to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings.” See Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007). As such, “[t]he court's inquiry is limited to the merits of the abduction [or retention] claim and not the merits of the underlying custody battle.” See Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004). The Hague Convention applies to children under sixteen years of age who are “habitually resident” in a contracting state and are “wrongfully removed to” or “retained in” another contracting state. See Convention, Arts. 1 and 4. A removal or retention is “wrongful” within the meaning of the Hague Convention where:

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

See Convention, Art. 3. The petitioner bears the burden of establishing by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” See 22 U.S.C. § 9003(e)(1)(A).

         Here, to prevail on the Verified Petition, Father must establish that: (1) the Minor Child was “habitually resident” in Peru at the time Mother removed him from Peru or retained him in the United States; (2) the removal or retention was in breach of Father's custody rights under Peruvian law, and (3) Father had been exercising those rights at the time of removal or retention. See Ruiz, 392 F.3d at 1251. If Father establishes a wrongful removal or retention, then “the authority concerned shall order the return of the child forthwith, ” unless Mother establishes one of the affirmative defenses enumerated in the Convention. See Convention, Art. 12; see also Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008).

         III. Discussion

         In the Verified Petition, Father alleges that he and Mother have had an “intermittent relationship” for several years, during which time the Minor Child, J.C.O., was born. See Verified Petition ¶¶ 6-7. Father attaches to the Verified Petition the Minor Child's birth certificate which reflects that the Minor Child was born in Peru, in January of 2013. See Verified Petition ¶ 7, Ex. A. The birth certificate names Petitioner as the father and Respondent as the mother. Id. Father alleges that he shared responsibility for the care of the Minor Child, spent time with him, and provided for his care and well-being. See id. ¶¶ 9-10. According to Father, in the spring of 2017, Mother asked Father to allow her to bring the Minor Child to the United States to visit Mother's parents. Id. ¶ 11. Father asserts that, at Mother's request, he signed a Temporary Consent agreement documenting his consent to this temporary travel. Id. According to Father, the temporary travel plans provided that Mother would return to Peru with the Minor Child on August 25, 2017. Id. Father alleges that Mother did not return to Peru as agreed upon and has informed Father that she has no intention of returning to Peru with their son. Id. ¶ 12. Indeed, Father maintains that Mother “lied about her travel plans to the United States promising to return to Peru with the [M]inor [C]hild while having no intention of doing so.” Id. ΒΆ 20. As such, Father asserts that Mother's removal of the ...


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