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Wednesday, March 21, 2018

Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018)[Peru] [Federal & State Judicial Remedies] [Motion to dismiss denied]

In Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018) Petitioner Miguel Benito Campomanes Flores (Father) initiated this action on January 25, 2018. The  Respondent Maria Fernanda Orbegoso Elias-Arata (Mother) moved to dismiss the Verified Petition for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Upon review, the Court found  that the Verified Petition states a claim for wrongful retention under the Hague Convention, and as such, the Motion is due to be denied.3

In the Verified Petition, Father alleged that he and Mother have had an “intermittent relationship” for several years, during which time the Minor Child, J.C.O., was born. Father attaches to the Verified Petition the Minor Child’s birth certificate which reflects that the Minor Child was born in Peru, in January of 2013. The birth certificate names Petitioner as the father and Respondent as the mother.  Father alleges that he shared responsibility for the care of the Minor Child, spent time with him, and provided for his care and well-being. According to Father, in the spring of 2017, Mother asked Father to allow her to bring the Minor Child to the United States to visit Mother’s parents. Father asserts that, at Mother’s request, he signed a Temporary Consent agreement documenting his consent to this temporary travel. According to Father, the temporary travel plans provided that Mother would return to Peru with the Minor Child on August 25, 2017.  Father alleges that Mother did not return to Peru as agreed upon and has informed Father that she has no intention of returning to Peru with their son.  Indeed, Father maintains that Mother “lied about her travel plans to the United States promising to return to Peru with the [M]inor [C]hild while having no intention of doing so.”  As such, Father asserts that Mother’s removal of the Minor Child from Peru was done in a “deceptive manner” and “without [his] consent.”  Father contends that prior to the events giving rise to this case, the Minor Child had resided in Peru since birth, enjoyed “substantial timesharing” with Father, and “was completely settled and integrated in Peru’s life and culture.”

The district court found that the father had set forth sufficient factual allegations to support a plausible claim for wrongful removal or wrongful retention under the Hague Convention. The Mother argues that Father’s allegations are insufficient because he fails to allege facts supporting a wrongful removal and fails to allege that he has rights of custody under Peruvian law. The Court disagreed. It was not entirely clear whether Father sought to pursue a claim of wrongful removal or one of wrongful retention., Even if Father mistakenly characterized his claim as a “wrongful removal,” it was apparent from the facts alleged that Father has stated a claim for “wrongful retention” under The Hague Convention. Mother also contended that Father failed to adequately plead that he has rights of custody under Peruvian law. This argument was plainly without merit. Father alleged the following facts in support of his custody rights: (1) he is the Minor Child’s father, as listed on the birth certificate, (2) the parties “shared responsibilities for the care of their son”, (3) Father spent time with his son almost every day and provided for his care and well-being, (4) Mother asked Father for permission to take the Minor Child to the United States and requested that he sign a Temporary Consent agreement documenting his consent to this plan, , and (5) prior to the wrongful retention, the Minor Child lived with Mother while enjoying “substantial timesharing” with Father. “The Convention broadly defines ‘rights of custody’ as ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ ” See Hanley v. Roy, 485 F.3d 641, 645 (11th Cir. 2007) (quoting Convention, art. 5). At this stage of the proceedings, the foregoing factual allegations, and in particular, the allegation that Mother asked Father to sign a form consenting to her travel with the Minor Child, were sufficient to give rise to the inference that Father had rights of custody pertaining to the Minor Child within the meaning of the Hague Convention and was exercising those rights.

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