In Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053
(C.A.1 (Puerto Rico)) Lisandro Patrick appealed a decision of the United States
District Court for the District of Puerto Rico dismissing his petition for the
return of his child under the Hague Convention and the district court's order
that he post a bond to proceed with the case. In March 2012, Rivera absconded to
Puerto Rico with her children. When Patrick discovered that Rivera had taken her
children to Puerto Rico and did not intend to return to the United Kingdom, he
filed a petition for the return of L.N.R. in the United States District Court
for the District of Puerto Rico under the Hague Convention. The petition alleged
that Rivera wrongfully removed L.N.R. from her habitual residence, the United
Kingdom. Patrick did not petition for the return of Rivera's other child because
he was not the child's biological father. On the eve of trial, October 11,
Rivera moved to dismiss Patrick's petition under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. Rivera
argued in part that removal of a child is "wrongful" under the Hague Convention
only if "it is in breach of [a person's] rights of custody," Hague Convention
art. 3, and that Patrick had no rights of custody under the Convention because
he was not registered as L.N.R.'s father in her birth certificate. The
magistrate judge granted Rivera's motion to dismiss on the ground that Patrick
never presented his affidavit of paternity to Puerto Rico's Vital Statistics
Registry. Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.P.R. Nov. 8, 2012).
The Court of Appeals observed that Patrick had to allege facts sufficient
to show that he has "rights of custody... under the law of the State in which
the child was habitually resident immediately before the removal or retention."
Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual
residence was the United Kingdom. For purposes of this appeal, Rivera did not
dispute this allegation. Therefore, Patrick's rights of custody were determined
with respect to United Kingdom law. "Where a child's father and mother were
married to each other at the time of his birth, they shall each have parental
responsibility for the child." Children Act, (1989) § 2(1). On its face, this
provision would appear not to apply to Patrick and Rivera, who married after
L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother
were ... married to each other at the time of his birth must be read with
section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. §
2(3). That section states that "references to a person whose father and mother
were married to each other at the time of his birth include ... references to
any person to whom subsection (3) below applies." Family Law Reform Act, (1987)
§ 1(2). Subsection (3) applies to "any person who ... is a legitimated person
within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That
section defines "legitimated person" to include "a person legitimated or
recognised as legitimated ... under section 2 or 3 above," Legitimacy Act,
(1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the
parents of an illegitimate person marry one another and the father of the
illegitimate person is not at the time of the marriage domiciled in England and
Wales but is domiciled in a country by the law of which the illegitimate person
became legitimated by virtue of such subsequent marriage, that person, if
living, shall in England and Wales be recognised as having been so legitimated
from the date of the marriage. ( The National Archives of the United Kingdom
made these statutes available at http://www.legislation.gov.uk/) Based on these
statutes, it concluded (as did the district court) that L.N.R.'s removal was
wrongful under the Hague Convention if L.N.R. became legitimated under Puerto
Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick
filed a letter from the International Child Abduction and Contact Unit (a unit
of Ministry of Justice's Official Solicitor) stating that "[t]he parents are
married to each other and therefore both have parental responsibility for [L.N.R.],
pursuant to Section 2(1) of the Children Act of 1989.
The Court of Appeals noted that tor more than a century, Puerto Rico law
has provided that a child born under the same circumstances as L.N.R. is
legitimated by the subsequent marriage of her parents. When Spain ceded Puerto
Rico to the United States in 1898, the Spanish Civil Code provided that "natural
children," defined as children born out of wedlock to parents who could have
married each other at the time of conception, may be legitimated by the
subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911
contained similar laws. Puerto Rico's current law was the same, except that it
no longer requires that a child's parents be eligible to marry each other at the
time of the child's conception. Despite the clear language of the statute, the
district court held that Patrick's marriage to Rivera did not legitimate L.N.R.
under Puerto Rico law because Patrick did not present his affidavit of paternity
to the Vital Statistics Registry of Puerto Rico. The court stated that a child
born out of wedlock "will not be automatically considered as begotten by" a man
and woman who later marry, unless they register the child as theirs.” Patrick,
2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither
opinion on which the district court relied adequately supported its decision.
The 1911 Civil Code was superseded by laws that expand the range of ways in
which a parent can acknowledge a child and the Supreme Court of Puerto Rico has
held that under current law, "[t]he father, or in his default, his heirs, may
acknowledge in any way their children, expressly or impliedly, regardless of the
dates or circumstances of their births and for all legal purposes." Because
Patrick needed only to acknowledge L.N.R. "in any way," his affidavit
acknowledging L.N.R. as his daughter sufficed to establish that he was her
father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated
L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera
admitted this allegation in her answer, and no one else challenged Patrick's
paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under
Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R.
under United Kingdom law, which meant that he had "rights of custody" under the
Hague Convention. The district court erred when it dismissed Patrick's petition
on the grounds that he did not have rights of custody.
The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his
bond will serve not only as a non-resident bond, but shall also respond to any
damages that Respondent may incur should Petitioner not prevail on the merits."
Patrick moved to vacate the bond requirement, arguing that the Hague Convention
explicitly prohibits a court from requiring such a bond: "No security, bond or
deposit, however described, shall be required to guarantee the payment of costs
and expenses in the judicial or administrative proceedings falling within the
scope of this Convention." Hague Convention art. 22. The district court
continued to assert the authority to impose a bond but reduced the amount of the
bond to $500. In a minute order dated June 28, 2012, the district court relied
on three opinions that refer to instances in which a court imposed a bond
in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004);
Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927
(11th Cir.1998).
The Court of Appeals held that the Hague Convention deprived the district
court of authority to impose a bond on Patrick. It saw no distinction between a
bond imposed to "respond to damages that Respondent may incur should Petitioner
not prevail on the merits" and the bond that the Convention prohibits. The
opinions on which the district court relied refer only in passing to a district
court's imposition of a bond, without saying whether ordering the bond was
within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 &
n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the
text of the Convention. It reversed the dismissal of Patrick's petition, vacated
the order requiring that Patrick post a bond, and remanded the case to the
district court with instructions to conduct a trial as soon as possible.
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