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Friday, September 15, 2017

Kovacic v Harris, 2017 WL 2719362 (D. Maryland, 2017)[Croatia][Federal & State Judicial Remedies] [Motion to dismiss]

          In Kovacic v Harris, 2017 WL 2719362 (D. Maryland, 2017) Plaintiff Ivica Kovačić brought an action seeking the return of his daughter, “N.K.,” to her “habitual residence” in the country of Croatia. N.K.’s mother, Defendant Danijela Harris with whom N.K. currently resided in the United States, filed a Motion to Dismiss this action, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. After a hearing, the motion was denied.

          Plaintiff and Defendant were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.,” was born in Sisak, Croatia.  The family lived together in Sisak, Croatia until the mother, Danijela, moved out of the home in April of 2007. On February 9, 2009, the parties dissolved their marriage in Croatia.  In a Judgment dated that same day the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak ... [and that p] arental care remain[ed] shared.”. The Croatian Court further ordered that Mr. Kovačić would have specified visitation time with N.K. Around December of 2015, Mr. Kovačić consented to N.K.’s mother taking N.K. to the United States to visit the mother’s aunt and uncle for the winter holiday, but with the understanding that she and N.K would return to Croatia at the end of N.K.’s winter school vacation. N.K.’s mother began a relationship with a man named Christopher Harris while on that trip. Around January 7, 2016, N.K.’s mother informed Mr. Kovačić via a text message and Facebook message that she planned to remain in the United States with N.K, contrary to their agreement before the trip. N.K.’s mother ultimately married Harris in June of 2016. N.K. now resides with Christopher Harris and her mother, now Mrs. Danijela Harris, in Elkton, Maryland. On January 6, 2017, Mr. Kovačić filed this action.

          The district court observed that to survive a motion under Fed. R. Civ. P. 12(b) (6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Although a court “accepts the facts as alleged” in the Plaintiff’s complaint in reviewing a Rule 12(b)(6) motion to dismiss, Quintana, 2017 WL 2438774 at *1, a court may properly consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits....” Goines, 822 F.3d at 166 (citations omitted); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

          Although Mr. Kovačić’s Complaint characterized the Judgment of the Municipal Court of Sisak, Croatia as a “joint custody and visitation arrangement,” Harris argued that Mr. Kovačić did not have “rights of custody” over N.K., but merely had “rights of access” under that Judgment. She pointed out that the Judgment clearly “entrust[s]” the “care and upbringing” of N.K. to her mother and dictated that N.K. live with her mother, which she interpreted as “sole custody.” Accordingly, she moves for dismissal of the Complaint for failure to state a claim for relief, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure.

          The district court found that Mr. Kovačić stated a prima facie case of “wrongful removal” under the Hague Convention and International Child Abduction Remedies Act. Mr. Kovačić  alleged that, prior to N.K.’s trip to the United States with her mother in December of 2015, N.K. lived in Croatia for her entire life, spending significant time with both parents. Additionally, he has alleged that the Municipal Court of Sisak, Croatia granted him “shared” “parental care,” pursuant to a “joint custody and visitation agreement” (although Mrs. Harris objected to this characterization), and that Mrs. Harris’ wrongful retention of N.K. in the United States now violated his rights as a “physical custodian” and prevents him from “exercising his rights of custody.”  
          Additionally, Mrs. Harris argued that the Complaint should be dismissed pursuant to Rule 12(b) (1) of the Federal Rules of Civil Procedure because the Court lacks jurisdiction to hear Mr. Kovačić’s “access claims” or to return N.K. to Croatia for the purpose of resolving a “visitation” or “access dispute.” She argued that the court with jurisdiction to hear an “access claim” under the Hague Convention was the Circuit Court for Cecil County, Maryland. Mr. Kovačić contended that he does not merely have “access rights,” but has “rights of custody” under Croatian Law and the Croatian Court’s Judgment in the parties’ divorce case. The Croatian Court’s Judgment specifically provided that “[p]arental care remains shared.” Mr. Kovačić appended the Declaration of Sunčica Lončar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia.  She indicated that it is the official position of the Ministry for Demography, Family, Social Policy and Youth that Mr. Kovačić does have custody rights over N.K. She further stated that Croatian law recognizes both “legal custody” and “physical custody.”  In accordance with Articles 91(3), 99(2), and 100(1) of the Family Act, she explained that parents can only be deprived of legal custody if they are deceased or if a court has deprived them of “legal capacity.” It was her opinion that the Croatian Court’s ordering that “parental care remains shared” preserved Mr. Kovačić’s “legal custody rights.” She further stated that the version of the Croatian Family Act in effect at the time of the parties’ divorce “undisputed[ly]” provided that “both parents, regardless of physical custody, have the right to determine the child’s place of residence.”

          The district court noted that it is s well-established that the Hague Convention envisions that proof of foreign law may be established via “certificates or affidavits,” Central Authority opinions, letters, and expert testimony. See Pérez-Vera Report3, note 19, ¶ 101; see also Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004) (establishing foreign law via letters from Argentine Central Authority). Mrs. Harris did not challenge the authority, admissibility, or authenticity of Sunčica Lončar’s Declaration. For these reasons, Plaintiff established by a preponderance of the evidence that the Court had subject matter jurisdiction over his case.

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