United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
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.
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).
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.
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.
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.
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
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
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).
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.
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