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Hogan v. Hogan

United States District Court, E.D. Virginia, Alexandria Division

January 11, 2017

JOSEPH HOGAN, Petitioner,
v.
MARILUZ HOGAN, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Respondent Mariluz Hogan's Motion to Dismiss [Dkt. 29] Petitioner Joseph Hogan's Petition under the Hague Convention on the Civil Aspects of International Child Abduction. For the following reasons, the Court will deny Respondent's Motion.

         I. Background

         The following facts are taken as true for purposes of the preset Motion. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).

         Petitioner and Respondent married in 2001. Both are U.S. citizens, and Petitioner is additionally a citizen of Brazil. Petitioner and Respondent have two children together, GTH and JWH, who are citizens of both the United States and Brazil.

         Respondent is employed by U.S. Immigration and Customs Enforcement. In 2012, Respondent accepted a three-year assignment in Spain as an attaché to the United States embassy in that country. Petitioner and the couple's two children relocated to Spain in June of 2013, where the family resided for the following three years.

         Shortly before her assignment was to expire, Respondent informed Petitioner that she intended to file for divorce, seek a new job, and relocate their children to the United States. Petitioner objected to the removal of their children from Spain, as they were thriving in their Spanish community.

         Several weeks later, in the early hours of November 17, 2016, Respondent removed the children from their home in Spain without warning and took them to the airport. Despite Petitioner's efforts, Respondent then flew with the children to the United States. She has since resided with them in this district. Respondent's assignment in Spain has now terminated, and Respondent intends to remain in the United States with the children against Petitioner's wishes.

         On November 29, 2016, Petitioner filed a Petition under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of the children to Spain. The Petition was transferred from the U.S. District Court for the District of Columbia to this Court, and Respondent now moves to dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(6).

         II. Legal Standard

         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; ‘importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). In reviewing a motion brought under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the complaint, ” drawing “all reasonable inferences” in the plaintiff's favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440 (citations omitted). Generally, the Court may not look beyond the four corners of the complaint in evaluating a Rule 12(b)(6) motion. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).

         III. Analysis

         Petitioner asks that the Court order his children returned to Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, a treaty intended to “deter parents from taking children across international boundaries in search of a more sympathetic court to resolve custody disputes.” Alcala v. Hernandez, 826 F.3d 161, 169 (4th Cir. 2016), cert. denied, 137 S.Ct. 393 (2016). “The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott v. Abbott, 560 U.S. 1, 20 (2010). The primary remedy available under the Convention is a court order mandating the return of a child to their country of habitual residence. “Importantly, the return remedy does not alter the pre-existing allocation of custody rights between parents; the Convention generally leaves ultimate custodial decisions to the courts of the country of habitual residence.” Alcala, 826 F.3d at 169.

         As an initial matter, Petitioner filed an Amended Petition [Dkt. 33] on the eve of the hearing on this Motion. “[A]n amended pleading ordinarily supersedes the original and renders it of no legal effect.” Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (citation omitted). Under other circumstances this might warrant denying Respondent's Motion to Dismiss, which is directed to Petitioner's original, null Petition. Here, however, the Amended Petition merely adds allegations ...


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