Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) [Mexico] [Motion to dismiss] [Maintain Statues Quo] [Guardian Ad Litem] [Expedited Discovery]

In Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) the district court denied the Respondents Motion to Dismiss; denied the Request for Expedited Discovery; denied the Request for Appointment of a Guardian Ad Litem; and granted the Request for Keeping Status Quo During Pendency of Litigation.
 
On November 6, 2014, Petitioner Bernice Vega Ostos brought an action against Defendant Jose Alfredo Vega  pursuant to the Hague Convention. Ms. Vega–Ostos and Mr. Vega are the parents of J.G.V., who was eight years old. Ms. Vega–Ostos alleged in her Petition for Return of Child that in removing J.G.V. from his habitual residence in Mexico, where J.G.V. resided with his mother, and bringing him to the United States to reside with his father in Dallas, Texas, Mr. Vega violated her custody rights under Mexican law and the parties' custody agreement under a Final Decree of Divorce entered on November 8, 2012, by the 302nd Judicial District Court, Dallas County, Texas. Ms. Vega–Ostos sought an order requiring Mr. Vega to return J.G.V. to Mexico. Pending a hearing in the court, Ms. Vega–Ostos requested: that she be given immediate access to J.G.V.; that Mr. Vega be prohibited from removing J.G.V. from the jurisdiction; that Mr. Vega be required to turnover to the court J.G .V.'s travel documents; and that the court set an expedited hearing on her Petition. Ms. Vega–Ostos also seeks to recover her attorney's fees and costs incurred as a result of this action. 
Mr. Vega moved to dismiss the action, contending that it does not fall under the ICARA and instead merely involves the issue of whether a modification of the parties' custody agreement should be granted by the 302nd Judicial District Court, Dallas County, Texas, which entered the parties' Final Decree of Divorce. Mr. Vega asserted that he filed a motion with the state court to modify the parties' parent-child relationship as to J.G.V. on August 12, 2014. Mr. Vega contended that he has lived in Dallas County for several years and has never hidden from Ms. Vega–Ostos the whereabouts of J.G.V., who was currently residing with him and attending school in Texas. Mr. Vega contended that, even assuming that the ICARA applies, Ms. Vega–Ostos cannot establish the requisite prima facie case under the ICARA because: (1) J.G.V. is not a habitual resident of Mexico; and (2) he is not in breach of any custody or court order. According to Mr. Vega, he is a joint managing conservator under the Final Divorce Decree and, as such, has the right to ensure that J.G.V. is not placed in harm's way. Mr. Vega further asserted that he has affirmative defenses under Article 13 of the Convention that would allow J.G.V. to remain in his custody in the United States. Mr. Vega contended that returning J.G.V. to Mexico would subject him to a grave risk of physical or psychological harm or otherwise place J.G.V. in an intolerable situation. In addition, Mr. Vega contends that J.G.V objected to returning to Mexico, and that J.G.V. has reached an age and level of maturity appropriate for the court to take into account J.G.V's view as to whether he should be returned to Mexico. Mr. Vega therefore requested that Petition filed by Ms. Vega–Ostos be denied and dismissed. Ms. Vega opposed the motion.


The court observed that to defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint need not contain detailed factual allegations, it must set forth “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 . The “[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”Id.(quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679. In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. In ruling on such a motion, the court cannot look beyond the pleadings. The pleadings include the complaint and any documents attached to it. In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. . While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”Iqbal, 556 U.S. at 679 . Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. The court did not evaluate the plaintiff's likelihood of success; instead, it only determined whether the plaintiff has pleaded a legally cognizable claim.

The Convention is implemented through the ICARA.  Under the ICARA, state courts and federal district courts have concurrent original jurisdiction over actions arising under the Convention. 22 U.S.C. § 9003(a). J.G.V. was located in Dallas County, Texas, when Ms. Vega–Ostos filed her Petition under the Convention. The court therefore has jurisdiction over this action, and, for the reasons herein explained, it was irrelevant whether there is a motion pending to alter the parties' custody agreement in state court. 

A parent's removal or retention of a child is considered wrongful “when he or she removes or retains the child outside the child's country of habitual residence, and this removal: breaches the rights of custody accorded to the other parent under the laws of that country; and, at the time of removal, the non-removing parent was exercising those custody rights.”Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir.2004) (citing Convention, art. 3). “[R]ights of custody” are “rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.”Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). Pursuant to Article 3 of the Convention, rights of custody may arise from operation of law, from a judicial or administrative decision, or from a legally binding agreement. Convention, art. 3. Neither the Convention nor ICARA defines “habitual residence.” Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1455 (2013).“The inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.”It is irrelevant under the Convention “whether there is a custody dispute concerning [the] child pending at the time of removal.”Appellant, 394 F.3d at 343. The Convention's return remedy does not change custody rights that existed prior to the wrongful removal of a child and is not a determination regarding the merits of any custody issue. Abbott, 560 U.S. at 9 (citing Convention, art. 19). If a petitioner shows by a preponderance of the evidence that the removal or the retention of the child was wrongful, the burden shifts to the respondent to prove an applicable affirmative defense. See 22 U.S.C. § 9003(e)(1). 

Ms. Vega–Ostos alleged in her Petition that she had custodial rights under Mexican law and the exclusive right under the parties' divorce decree to designate J.G.V.'s primary residence without regard to geographic location; that J.G.V. has been a habitual resident in Mexico “since shortly after his birth” until he was wrongfully removed from Mexico; and that she was exercising her custodial rights at the time J.G.V. was wrongfully removed from Mexico by Mr. Vega. Ms. Vega–Ostos's pleadings are not verified as she maintains. The Petition is accompanied by a verification, but Ms. Vega–Ostos did not sign the verification. The court nevertheless determined that Ms. Vega–Ostos's factual allegations, while sparse, were sufficient to state a claim for wrongful removal and return under the Convention. Although Mr. Vega asserted that he has affirmative defenses under the Convention, dismissal of Ms. Vega–Ostos's Petition was not appropriate under Rule 12(b)(6), as the facts supporting his affirmative defenses and Ms. Vega–Ostos's claim under the Convention needed to be developed in an evidentiary hearing. Further, it was irrelevant for purposes of the Convention whether Mr. Vega has filed a motion in state court to alter the parties' custody arrangement. The court therefore denied the Motion to Dismiss. 

The court noted that the Convention requires courts to “act expeditiously in proceeding for the return of children.”Convention, art. 11. It found that Mr. Vega's request for discovery, even on an expedited basis, would necessarily delay the proceedings. Moreover, Mr. Vega did not explain what discovery is needed. The court therefore denied the Request for Expedited Discovery. The Court observed that Federal Rule of Civil Procedure 17(c)(2) requires a court to appoint a guardian ad litem for a minor whose interests are not represented in an action. The district court noted that Mr. Vega had not set forth any specific reason as to why he believed appointment of a guardian ad litem was necessary in this case, and the court determined that J.G.V.'s fundamental interests under the Convention were adequately represented, as both parties were making an effort in this case to represent those interests. The court therefore denied the Request for Appointment of a Guardian Ad Litem. 



Mr. Vega essentially requested to retain custody of J.G.V. pending the resolution of this action. In response, Ms. Vega–Ostos contended that allowing Mr. Vega to retain J.G.V. pending the resolution of this action would constitute an improper custody decision by the court and contravene the Convention's purpose of restoring the pre-abduction status quo and to deterring parents from crossing borders in search of a more sympathetic forum. The court disagreed with Ms. Vega–Ostos's assertion that a ruling by the court to maintain the status quo during the pendency of this action would amount to a custody determination.  For this reason, and because neither party had pointed the court to any authority dealing with a request to maintain the status quo during the pendency of a claim under the Convention, the court granted the Request for Keeping Status Quo During Pendency of Litigation.