Rubio v. Lopez, 2023 WL 8031322 , S.D. New York (2023) [Mexico][Petition dismissed][Mootness]

 In Rubio v. Lopez, 2023 WL 8031322 , S.D. New York (2023) Petitioner Franco Bartzik Rubio and Respondent Sandra Leticia Morales Lopez were former spouses who are engaged in a bitter custody fight in Mexico over their six-year-old child, A.B.M. Bartzik Rubio filed a petition under the Hague Convention for “the return” of A.B.M., who was allegedly “removed from Mexico” to this District by Morales Lopez without Bartzik Rubio’s “consent or acquiescence.” Morales Lopez moved to dismiss the case as moot on the ground that A.B.M. was already in Mexico. The Court founds that Morales Lopez  carried her burden and that the case must be dismissed as moot. “To prevail on a Hague Convention child custody claim, a petitioner must establish by a preponderance of the evidence that: ‘(1) the child was habitually resident in one State and has been removed to ... a different State; (2) the removal ... was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal.’ ” Daunis v. Daunis, 222 F. App’x 32, 34 (2d Cir. 2007) (summary order) (quoting Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005)). “The Convention’s central operating feature is the return remedy.” Abbott v. Abbott, 560 U.S. 1, 9 (2010). That is, while a court adjudicating a petition under the Hague Convention may order a child returned to his or her country of habitual residence, it must leave decisions regarding custody arrangements to the courts of the country of habitual residence. It follows that where there is no dispute as to a child’s country of habitual residence and the child has returned to that country, courts generally dismiss as moot petitions brought pursuant to the Hague Convention. That is the situation here. First, there was no dispute that Mexico was A.B.M.’s country of habitual residence. And second, the record confirmed that A.B.M. was in Mexico (and likely had been for nearly the entire duration of this case). Morales Lopez submitted a sworn declaration attesting that A.B.M. was currently residing in Mexico and, with the exception of a three-day shopping trip to McAllen, Texas, near the Mexico border, in May 2023, “has been in Mexico continuously since March 12, 2023.” She also submitted photographs of A.B.M. in Mexico with date, time, and location stamps, including one taken as recently as November 3, 2023. Significantly, Bartzik Rubio did not present any evidence (let alone admissible evidence) to the contrary — even though the Court granted him discovery on the question of mootness. At best, he pointed to an Amber Alert identifying A.B.M. as missing that was issued in Mexico on August 20, 2023.. But the Amber Alert (which was almost certainly inadmissible hearsay) was apparently deactivated within days, and it appeared to have been generated in the first instance by Bartzik Rubio’s own unverified complaints to the Mexican police, Making matters worse, it came only a few months after a Mexican court deactivated an earlier Amber Alert that was also apparently orchestrated by Bartzik Rubio — and granted Morales Lopez a protective order. In short, the Amber Alert was no evidence that A.B.M. was (or remains) outside of Mexico, let alone that she was (or remains) in the United States. Lacking evidence that A.B.M. was outside of Mexico, and in this District in particular, Bartzik Rubio sought to avoid dismissal by invoking the exception to mootness for cases that are “capable of repetition, yet evading review.” Exxon Mobil Corp. v. Healey, 28 F.4th 383, 395 (2d Cir. 2022). The exception is available only in exceptional situations. This is not one of those “exceptional situations.”

Recent Hague Convention District Court Cases - Duhart v Kristan, 2023 WL 79277779 N.D. Georgia, 2023) [Germany][Petition dismissed] [Lack of jurisdiction]

In Duhart v Kristan, 2023 WL 79277779 N.D. Georgia, 2023) the court denied the petition and dismissed the case upon  a 28 U.S.C. § 1915(e)(2)(B) frivolity review of pro se Petitioner’s Complaint and Verified Petition for Return of a Child under the Hague Convention.

 Petitioner, Jovan Duhart, was the father of minor A.D. He contended that he and the child’s mother, Taylor Kristan, share joint legal and physical custody of A.D. According to Duhart, as of June 4, 2023, the child has been wrongfully detained by Kristan in Stuttgart, Germany. Duhart filed his Petition on September 1, 2023 requesting a preliminary injunction hearing in an effort to obtain an order from this Court directing that A.D. be returned to the State of Georgia. 

The Court observed that an in forma pauperis (IFP) complaint such as this one must be dismissed “if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The  International Child Abduction Remedies Act (ICARA), establishes procedures for requesting return of a child wrongfully removed to or retained in the United States. 22 U.S.C. § 9003. The Act authorizes “[a]ny person” seeking return of a child under the Convention to file a petition in state or federal court. Id. The petition must be filed “in any court ... which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” Id. See also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (Under the Hague Convention, “a court in the abducted-to nation has jurisdiction to decide the merits” of an ICARA petition); Yang v. Tsui, 416 F.3d 199, 201 (3d Cir. 2005) (“The District Court had jurisdiction pursuant to ICARA.... At the time [petitioner’s] Petition was filed in the District Court, the child was located in Pittsburgh, Pennsylvania.”); Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998) (jurisdiction over petition in Georgia was proper where children were located in Georgia, because ICARA jurisdiction is based on children’s location, not traditional residency).  The child was allegedly being wrongfully retained in Germany on September 1, 2023, the date Duhart filed this Petition. Accordingly, this Court had no jurisdiction over Duhart’s claims. Duhart’s assertion that venue was proper based on Kristan’s federal employment had no bearing on the jurisdictional analysis under ICARA.