Kovacic v. Harris

Filing 24

MEMORANDUM ORDER denying 8 Motion to Dismiss filed by Danijela Harris. Signed by Judge Richard D. Bennett on 6/22/2017. (jnls, Deputy Clerk) Modified on 6/23/2017 (jnls, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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IVICA KOVAČIĆ,
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Plaintiff,

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v.

Civil Action No.: RDB-17-0044
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DANIJELA HARRIS,

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Defendant.
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MEMORANDUM ORDER
Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) has brought this action under the
International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking
the return of his daughter, “N.K.,” to her “habitual residence” in the country of Croatia,
pursuant to the 1980 Hague Convention on the Civil Aspects of International Child
Abduction (“Hague Convention”). See Compl., ECF No. 1. N.K.’s mother, Defendant
Danijela Harris (“Defendant” or “Harris”), with whom N.K. currently resides in the United
States, has filed a Motion to Dismiss this action, pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure (ECF No. 8). This Court conducted a hearing on the
pending motion on June 20, 2017. For the reasons stated on the record, and summarized
herein, Defendant’s Motion to Dismiss (ECF No. 8) is DENIED.
BACKGROUND
In reviewing a Rule 12(b)(6) motion to dismiss, a court “accepts the facts as alleged”
in the Plaintiff’s complaint. Quintana v. City of Alexandria, et al., --- F. App’x ---, No. 16-1630,
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2017 WL 2438774, at *1 (4th Cir. June 6, 2017) (citing LeSeur-Richmond Slate Corp. v. Fehrer,
666 F.3d 261, 264 (4th Cir. 2012)). Plaintiff Ivica Kovačić and Defendant Danijela Harris
(formerly Kovačić) were married on February 22, 2003 in Desna Martinska Ves, Croatia. See
Compl., ¶ 9, ECF No. 1. On May 31, 2003, their daughter, “N.K.,” was born in Sisak,
Croatia. Id., ¶ 10. The family lived together in Sisak, Croatia until the mother, Danijela,
moved out of the home in April of 2007. Id., ¶ 11. On February 9, 2009, the parties
dissolved their marriage in Croatia. Id., ¶ 13. In a Judgment dated that same day (ECF No.
1-2), 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.” Id., ¶ 14. The
Croatian Court further ordered that Mr. Kovačić would have specified visitation time with
N.K., pursuant to a schedule set out in paragraph III of the Judgment. Id., ¶ 14.
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. Id., ¶ 16. N.K.’s mother has indicated that she began a relationship with a man
named Christopher Harris while on that trip. Mem. Supp. Mot., p. 3, ECF No. 8-1. 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. Compl., ¶ 17, ECF No. 1. N.K.’s mother ultimately married
Harris in June of 2016. Mem. Supp. Mot., p. 3, ECF No. 8-1. N.K. now resides with
Christopher Harris and her mother, now Mrs. Danijela Harris, in Elkton, Maryland. Id.

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On January 6, 2017, Mr. Kovačić filed this action under the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking N.K.’s return to
Croatia where, if necessary and appropriate, a further custody and visitation determination
can be made by a Croatian court under Croatian law. Compl., ¶ 28, ECF No. 1. Mr.
Kovačić avers that N.K. is being “wrongfully retain[ed]” in the United States, in violation of
his “physical custody” rights, that he and N.K. were “habitually resident” in Croatia at the
time of N.K.’s wrongful removal, and that he would be exercising his rights of custody but
for N.K.’s wrongful removal and retention. Id., ¶ 24. N.K. was thirteen years old at the time
the Complaint was filed, but subsequently turned fourteen years old on May 31, 2017. This
case was initially assigned to Judge Marvin J. Garbis of this Court, but was re-assigned to the
undersigned Judge Richard D. Bennett on May 31, 2017.

Discovery in this case has

commenced, and a two-day bench trial is now scheduled for Thursday, September 14, 2017
and Friday, September 15, 2017.
STANDARD OF REVIEW
I.

Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a

complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to
resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). 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
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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; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
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).
II.

Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for

lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). The
plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of
the evidence. Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015).
In a facial challenge, a court will dismiss the complaint “where a claim fails to allege
facts upon which the court may base jurisdiction.” Davis, 367 F. Supp. 2d at 799. Where the
challenge is factual, “the district court is entitled to decide disputed issues of fact with
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respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may look
beyond the pleadings and ‘the jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in fact subject matter
jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003) (citation
omitted). The court “may regard the pleadings as mere evidence on the issue and may
consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004).
ANALYSIS
As the United States Court of Appeals for the Fourth Circuit has recently explained
in Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017), the 1980 Hague Convention on the
Civil Aspects of International Child Abduction (“Hague Convention”) “sets forth a detailed
framework for addressing claims of international child abduction during domestic disputes
between parties in signatory nations” (citing Lozano v. Montoya Alvarez, ––– U.S. –––, 134 S.
Ct. 1224, 1228 (2014)). “After the United States ratified the Convention, Congress
implemented it through [the International Child Abduction Remedies Act (“ICARA”), 22
U.S.C. § 9001 et seq.]” Id. (citing Alcala v. Hernandez, 826 F.3d 161, 169 (4th Cir. 2016)).
“[T]he Convention provides that a child who was ‘wrongfully removed’ from his place of
habitual residence in violation of a person’s custody rights must be returned to that place unless
certain ‘narrow exceptions’ apply.” Id. (emphasis added).
I.

Mrs. Harris’ Motion to Dismiss the Complaint Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure
In order to state a prima facie case for the return of a child under the International

Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., a petitioner must show
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“that the child has been wrongfully removed or retained within the meaning of the
Convention.” 22 U.S.C. § 9003(e)(1)(A). Article III of the Hague Convention provides that
a child’s removal is “wrongful” where “it is in breach of rights of custody attributed to a person
. . . either jointly or alone, under the law of the State in which the child was habitually
resident immediately before the removal or retention” (emphasis added). Article V of the
Hague Convention provides that

“ ‘rights of custody’ . . . include rights relating to the care

of the person of the child and, in particular, the right to determine the child’s place of residence”
(emphasis added). Custody rights under the Convention may be established by operation of
law, judicial or administrative decision, or agreement of the parties.
Although Mr. Kovačić’s Complaint characterizes the Judgment of the Municipal
Court of Sisak, Croatia (ECF No. 1-2) as a “joint custody and visitation arrangement,”
Harris now argues that Mr. Kovačić does not have “rights of custody” over N.K., but merely
has “rights of access” under that Judgment. She points out that the Judgment clearly
“entrust[s]” the “care and upbringing” of N.K. to her mother and dictates that N.K. live
with her mother, see J., ¶ II, ECF No. 1-2, which she interprets 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.
Mrs. Harris relies primarily on two cases: the United States Supreme Court’s decision
in Abbott v. Abbott, 560 U.S. 1, 23 (2010) and the decision of the United States Court of
Appeals for the Fourth Circuit in White v. White, 718 F.3d 300, 308 (4th Cir. 2013). Although
the Supreme Court held in Abbott that a Chilean father did hold “custody rights,” Chilean
law specifically stated that a parent with visitation rights had the right to refuse consent for a
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child to travel abroad. Harris objects that no such law existed in Croatia at the time of the
parties’ divorce and, accordingly, that Mr. Kovačić lacks “physical custody” rights. Harris
analogizes the present case to the White case, in which the Fourth Circuit held that a parent’s
“parental authority” rights alone did not provide any basis for a wrongful removal action,
where no ne exeat1 right was granted by operation of law or specified in the custody
judgment. As outlined by this Court on the record at the June 20, 2017 hearing, both the
Abbott case and the White case are factually similar to the case at bar. However, neither case
provides support to Harris’ pending motion to dismiss. On the contrary, both cases proceeded
to a bench trial on the merits as to the issue of “rights of custody.”
Mr. Kovačić has stated a prima facie case of “wrongful removal” under the Hague
Convention and International Child Abduction Remedies Act. Mr. Kovačić has 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. See Compl., ¶¶ 10-12,
16, ECF No. 1; see Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001) (“habitual residence
pertains to customary residence prior to the removal.”). Additionally, he has alleged that the
Municipal Court of Sisak, Croatia has granted him “shared” “parental care,” pursuant to a
“joint custody and visitation agreement” (although Mrs. Harris objects to this
characterization), and that Mrs. Harris’ wrongful retention of N.K. in the United States now
violates his rights as a “physical custodian” and prevents him from “exercising his rights of

The Supreme Court of the United States has defined a “ne exeat” right as “the authority to consent before
the other parent may take the child to another country.” Abbott v. Abbott, 560 U.S. 1, 5 (2010).

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custody.” Compl., ¶¶ 14-15, 24, ECF No. 1. Accordingly, Mrs. Harris’ Motion to Dismiss
the Complaint (ECF No. 8) is DENIED with respect to her Rule 12(b)(6) argument.
II.

Mrs. Harris’ Motion to Dismiss the Complaint Pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure
Additionally, Mrs. Harris argues that the Complaint should be dismissed pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure because this 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 argues that the court with jurisdiction to hear an
“access claim” under the Hague Convention is the Circuit Court for Cecil County, Maryland.
Although the Hague Convention does protect “access rights,” the United States
Court of Appeals for the Fourth Circuit has clearly held in Cantor v. Cohen, 442 F.3d 196, 206
(4th Cir. 2006) that the International Child Abduction Remedies Act does not confer
jurisdiction upon federal courts to hear “access” claims.2 However, Mr. Kovačić contends
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 provides that “[p]arental care remains shared.” See J., p. 1, ECF No. 12. Mr. Kovačić has appended the Declaration of Sunčica Lončar, Senior Adviser Specialist
for the Ministry for Demography, Family, Youth and Social Policy of the Republic of
Croatia (ECF No. 11-1). She has indicated that it is the official position of the Ministry for
Mr. Kovačić does not dispute that Cantor is controlling law in the Fourth Circuit, but does
note that a Circuit split exists on this issue. See, e.g., Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.
2013) (holding that ICARA did create federal right of action to secure exercise of “rights of
access”). He preserves for appeal the argument that Cantor was wrongly decided. However,
as discussed herein, his primary argument is that he does not merely have “access rights,”
but that the Croatian Court’s Judgment did in fact preserve “custody rights.”
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Demography, Family, Social Policy and Youth that Mr. Kovačić does have custody rights
over N.K. Decl., ¶ 6, ECF No. 11-1. She further states that Croatian law recognizes both
“legal custody” and “physical custody.” Id., ¶ 7. In accordance with Articles 91(3), 99(2),
and 100(1) of the Family Act, she explains that parents can only be deprived of legal custody
if they are deceased or if a court has deprived them of “legal capacity.” Id., ¶ 10. It is her
opinion that the Croatian Court’s ordering that “parental care remains shared” preserved Mr.
Kovačić’s “legal custody rights.” Id., ¶ 12. She has 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.” Supp. Decl., ¶ 7, ECF No. 17-1 (emphasis added).
It is 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) (establishing proof of foreign law by an affidavit of Mexican
attorney); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004) (establishing foreign law
via letters from Argentine Central Authority). Mrs. Harris has not challenged the authority,
admissibility, or authenticity of Sunčica Lončar’s Declaration. For these reasons, Plaintiff
has established by a preponderance of the evidence that this Court does have subject matter
jurisdiction over his case. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir.
2015). Therefore, Harris’ Motion to Dismiss (ECF No. 8) is also DENIED with respect to
her jurisdictional argument under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

The official explanatory report of the Convention done by Elias Perez-Vera is recognized by the Hague
Conference on Private International Law as the official history and commentary on the Convention.

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CONCLUSION
For the reasons stated on the record at this Court’s June 20, 2017 hearing, and
supplemented herein, it is HEREBY ORDERED this 22nd day of June, 2017, that:
1. Defendant’s Motion to Dismiss, Pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure (ECF No. 8) is DENIED; and
2. Copies of this Order shall be sent to counsel of record.

____/s/_____________________
Richard D. Bennett
United States District Judge

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