United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Respondent Oleg
Viktorovich Ryabykh's (“Respondent”) Motion
to Dismiss Petition for Return of Child, ECF No.  (the
“Motion”), filed on August 26, 2019. The Court
ordered Petitioner Kristina Vershkova Alikovna
(“Petitioner”) to file an expedited response,
see ECF No. , which Petitioner has failed to do.
The Court has reviewed the Motion, the record in this case
and the applicable law, and is otherwise fully advised. For
the reasons set forth below, the Petition is dismissed for
lack of subject matter jurisdiction.
commenced this case on August 14, 2019 by filing the
Petition, ECF No. , alleging that Respondent wrongfully
removed their nine year-old son from the Russian Federation
to the United States. As a result, Petitioner seeks return of
her son pursuant to the Hague Convention on the Civil Aspects
of International Child Abduction (the
“Convention”), T.I.A.S. No. 11, 670, 1343
U.N.T.S. 89 (Oct. 25, 1980). In the Motion, Respondent seeks
dismissal of the Petition for lack of subject matter
12(b)(1) motion challenges the district court's subject
matter jurisdiction and takes one of two forms: a
“facial attack” or a “factual
attack.” “A ‘facial attack' on the
complaint ‘require[s] the court merely to look and see
if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the
motion.'” McElmurray v. Consol. Gov't of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). “A ‘factual attack,'
on the other hand, challenges the existence of subject matter
jurisdiction based on matters outside the pleadings.”
Kuhlman v. United States, 822 F.Supp.2d 1255,
1256-57 (M.D. Fla. 2011) (citing Lawrence, 919 F.2d
at 1529); see Stalley ex rel. U.S. v. Orlando Reg'l
Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir.
2008) (“By contrast, a factual attack on a complaint
challenges the existence of subject matter jurisdiction using
material extrinsic from the pleadings, such as affidavits or
assessing the propriety of a motion for dismissal under
Fed.R.Civ.P. 12(b)(1), a district court is not limited to an
inquiry into undisputed facts; it may hear conflicting
evidence and decide for itself the factual issues that
determine jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). As such,
“[w]hen a defendant properly challenges subject matter
jurisdiction under Rule 12(b)(1) the district court is free
to independently weigh facts, and ‘may proceed as it
never could under Rule 12(b)(6) or Fed.R.Civ.P.
56.'” Turcios v. Delicias Hispanas Corp.,
275 Fed.Appx. 879, 880 (11th Cir. 2008) (quoting Morrison
v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).
Through this lens, the Court considers the instant Motion.
Motion, Respondent mounts a factual attack to subject matter
jurisdiction, arguing that Petitioner cannot meet her burden
to prove that this Court has subject matter jurisdiction on
the basis that the United States and the Russian Federation
are not treaty partners under the Convention.
Convention was adopted “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 Preamble. The primary objectives of
the Convention are “to secure the prompt return of
children wrongfully removed to or retained in any Contracting
State and to ensure that rights of custody and access under
the law of one Contracting State are effectively respected in
the other Contracting States.” Id., Article 1.
Therefore, the underlying premise of the Convention is that
custody determinations are best made by the courts of the
country in which a child is habitually resident, and to
prevent international forum-shopping in child custody cases.
See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376
(8th Cir. 1995) (stating that the purpose of the Convention
is “to restore the status quo and deter parents from
crossing international borders in search of a more
sympathetic court.”). The Convention is implemented in
the United States through the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. §§
9001 et seq. According to ICARA, “[t]he courts
of the States and the United States district courts shall
have concurrent original jurisdiction of actions arising
under the Convention.” 22 U.S.C. § 9003(a).
may bind themselves to the terms of the Convention by either
signing and ratifying the Convention pursuant to Article 37,
or by acceding to the Convention pursuant to Article 38. The
United States signed the Convention in 1981, and the
Convention came into force in the United States in 1988.
Marks on Behalf of SM v. Hochhauser, 876 F.3d 416,
422 (2d Cir. 2017). According to Article 38,
Any other State may accede to the Convention.
[. . .] The accession will have effect only as regards the
relations between the acceding State and such Contracting
States as will have declared their acceptance of the
accession. Such a declaration will also have to be made by
any Member State ratifying, accepting or approving the
Convention after an accession. Such declaration shall be
deposited at the Ministry of Foreign Affairs of the Kingdom
of the Netherlands; this Ministry shall forward, through
diplomatic channels, a certified copy to each of the
The Convention will enter into force as between the acceding
State and the State that has declared its acceptance of the
accession on the first day of the third calendar month after