United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED SLATES DISTRICT JUDGE.
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. 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.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.
Standard of Review
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).
“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).
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
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).
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).
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. ¶ 20. As such, Father asserts that
Mother's removal of the ...