Willard v. Willard
OPINION AND ORDER DENYING RESPONDENTS MOTION TO DISMISS 10 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
BILLY JOE WILLARD, JR.,
Case No. 17-cv-11645
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
ERIKA LYNN WILLARD,
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
OPINION AND ORDER DENYING RESPONDENT’S MOTION TO DISMISS 
On May 24, 2017, Billy Joe Willard, Jr. (“Petitioner”) commenced this
action against Erika Lynn Willard (“Respondent”), seeking custody of the parties’
two children. See Dkt. No. 1. In Petitioner’s Amended Complaint, filed June 7,
2017, he alleges Respondent violated the Hague Convention on the Civil Aspects
of International Child Abduction (“Hague Convention”), as implemented by the
International Child Abduction Remedies Act (ICARA), 22. U.S.C. § 9001, et seq.
Dkt. No. 4.
The matter is presently before the Court on Respondent’s Motion to Dismiss
, pursuant to Federal Rules of Civil Procedure 12(b)(6). Dkt. No. 10. The
motion was filed on June 26, 2017. See id. Petitioner responded on July 13, 2017,
and Respondent replied on July 27, 2017. See Dkt. No. 12, 13. Upon review of the
pleadings, the Court determines that a hearing will not aid in the resolution of this
motion. E.D. Mich. LR 7.1(f)(2). For the reasons discussed herein, the Court
DENIES Respondent’s Motion to Dismiss .
Petitioner and Respondent, both American citizens, were lawfully married in
Tennessee in 2010. Dkt. No. 4, p. 5 (Pg. ID 326). In 2013, Respondent gave birth
to Petitioner’s two children—“ADW” and “MLW” —in Florida. Id. Petitioner is
an active duty member of the United States Air Force and was assigned to a
military base in Vicenza, Italy in 2015. 1 Id. at 8. Respondent and the children
moved with Petitioner to Italy. Id.
In July 2016, Respondent and the children accompanied Petitioner back to
the United States. Id. at 10. While Petitioner underwent training in Washington
D.C. in August and September, Respondent and the children visited family in
Michigan. Id. On September 29, 2016, Petitioner arrived in Michigan to fly back to
Italy with Respondent and the children. Id. Respondent refused to return to Italy
and would not allow Petitioner to take the children back to Italy. Id.
Petitioner has selected Texas as his home state, as required by federal and
military law. Dkt. No. 4, p. 6 (Pg. ID 327).
On October 31, 2016, Respondent filed a complaint against Petitioner in
Oakland County Circuit Court (“Michigan state court”) seeking a divorce and the
custody of the parties’ two children. Id. at 11–12. Respondent served Petitioner
with the Michigan state court case filing on December 22, 2016. Id. at 11.
In January 2017, Petitioner filed a parallel divorce case against Respondent
in Johnson County, Texas (“Texas state court”). Id. at 12. Petitioner argued that the
Michigan court lacked jurisdiction to proceed with a child custody case under the
Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). Dkt.
No. 4-24, pp. 17–25 (Pg. ID 547–55). Petitioner further argued that the court with
proper jurisdiction over the matter was the court in Johnson County, Texas, and
that the Texas state court should confer with the Crezzeao, Italy Family Court. Id.
The Texas state court conferred with the Michigan state court about which
state court had jurisdiction over the proceedings, as Petitioner requested. Dkt. No.
4, p. 13 (Pg. ID 334). On April 5, 2017, both state courts determined that the
Michigan state court should retain jurisdiction over the custody and divorce
proceedings. Id. Two weeks after the state courts determined jurisdiction was
proper in Michigan, Petitioner filed a new custody case in Italy seeking a divorce
and custody of the couple’s children. Dkt. No. 4-27.
On May 24, 2017, Petitioner filed a Complaint in this Court seeking return
of the children to Italy pursuant to the Hague Convention. Dkt. No. 1. He amended
his Complaint on June 7, 2017. Dkt. No. 4.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint
for “failure to state a claim upon which relief can be granted.” To withstand a
motion to dismiss pursuant to Rule 12(b)(6), a complaint must comply with the
pleading requirements of Federal Rule of Civil Procedure 8(a). See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Rule 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted)
(quoting FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). To
meet this standard, a complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570; see also Iqbal, 556 U.S. at 678–80 (2009) (applying the plausibility standard
articulated in Twombly).
When considering a Rule 12(b)(6) motion to dismiss, the Court must
construe the complaint in a light most favorable to the plaintiff and accept all of his
or her factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). However, the Court need not accept mere conclusory statements or legal
conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss, the Court may consider “the Complaint and
any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to defendant’s motion to dismiss so long as they are
referred to in the Complaint and are central to the claims contained therein.”
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The
Court may also consider “documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
A. The Hague Convention and ICARA
“The Convention on Civil Aspects of International Child Abduction was
adopted by the signatory nations in order ‘to protect children internationally from
the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual residence, as
well as to secure protection for rights of access.’ ” Friedrich v. Friedrich, 983 F.2d
1396, 1399–400 (6th Cir. 1993) (quoting Hague Convention, Preamble). It seeks
“to preserve the status quo and to deter parents from crossing international
boundaries in search of a more sympathetic court” to resolve their custody
disputes. Id. at 1400. The United States and Italy are both signatories to the Hague
The Hague Convention provides United States courts with jurisdiction “to
determine only rights under the Convention and not the merits of any underlying
child custody claims.” 22 U.S.C. § 9001(b)(4). Under the convention, removal or
retention of a child is “wrongful” where:
(a) it is in breach of the other parent’s rights of custody—defined 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—under the law of the State in
which the child was habitually resident immediately before the removal
or retention; and
(b) at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been exercised but for the removal
Hague Convention, Arts. 3, 5. “Children who are wrongfully removed or retained
within the meaning of the Convention are to be promptly returned unless one of the
narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4).
The petitioning parent bears the burden of proving by a preponderance of the
evidence that the removal or retention was “wrongful.” 22 U.S.C. § 9003(e)(1)(A).
If the petitioning parent establishes a prima facie case for returning the child, the
burden shifts to the responding parent to establish any one of the following
(1) the petitioner was not actually exercising rights of custody at the
time of the removal or retention, or the petitioner consented to or
subsequently acquiesced in the removal or retention (Hague
Convention, Art. 13a);
(2) the child objects to being returned and has reached an age and
maturity level at which it is appropriate to consider his or her
views (Hague Convention, Art. 13);
(3) there is a grave risk returning the child would result in physical or
psychological harm, or an otherwise intolerable situation (Hague
Convention, Art. 13b);
(4) returning the child would violate policies regarding the protection
of human rights and fundamental freedom (Hague Convention,
Art. 20); or
(5) the proceeding commenced more than a year after the removal or
retention, and the child is now settled in his or her new
environment (Hague Convention, Art. 12).
Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 800 (N.D. Ohio 2016). These
exceptions are “narrow” and must be narrowly construed. 22 U.S.C. § 9001(a)(4);
State Department Text and Legal Analysis of the Hague International Child
Abduction Convention, 51 Fed. Reg. 10,493, 10,509 (Mar. 26, 1986).
B. Respondent’s Motion to Dismiss Based on Petitioner’s Alleged Waiver
The case is presently before the Court on Respondent’s Motion to Dismiss,
and accordingly the Court will only resolve the narrow issue of whether the Court
Because the Court is denying Respondent’s motion, an
evidentiary hearing will follow wherein both parties may present evidence upon
which the Court may resolve the merits of Petitioner’s complaint.
Respondent argues in her Motion to Dismiss that Petitioner waived his rights
under the Hague Convention by arguing in Texas state court that Texas was the
proper forum in which his claims should be adjudicated. Dkt. No. 10, p. 24 (Pg. ID
671). Only after the Texas state court found Michigan was the proper forum did
Petitioner invoke his Hague Convention claims in Italy and this Court. Id. at 11.
Respondent further argues that a finding of waiver furthers the Convention’s goals
by preventing forum shopping.3 Dkt. No. 10, p. 25 (Pg. ID 672).
The Court understands that the Hague Convention seeks a “prompt” and
“expeditious” return of wrongfully removed children. Here, the State Department
has written the Court that it seeks a resolution within six weeks of the initiation of
proceedings. The Court does not resolve cases, particularly those of such a
sensitive nature, without providing both parties with an opportunity to present
evidence. Here, Respondent has not yet been able to provide evidence on her
behalf. To have the Court make a rash and ill-informed decision based solely on
Petitioner’s allegations, in order to satisfy the State Department’s request, would
not be in the interest of the parties, or the minor children.
Respondent’s allegations of forum shopping are not wholly meritless. This
Court is at least the fourth court in which the parties have filed claims related to
custody of the minor children. However, the Court also notes that a purpose of the
Hague Convention was “to prevent an abducting parent from gaining an advantage
in custody litigation by manipulating the forum in which the suit is brought.”
Holder v. Holder, 305 F.3d 854, 873 (9th Cir. 2002).
“Waiver is the intentional relinquishment of a known right.” United States v.
Fowler, 819 F.3d 298, 306 (6th Cir. 2016). There are very few cases analyzing the
concept of waiver in the context of the Hague Convention. Respondent cited to
several that she believes support her argument.
In Journe v. Journe, the District of Puerto Rico held that a petitioning parent
waived his Hague Convention rights by voluntarily dismissing his action for
divorce and custody in France, having believed that he and his spouse had
reconciled. 911 F. Supp. 43 (D.P.R. 1995). The petitioning parent’s voluntarily
dismissed suit had been brought pursuant to provisions of the Convention. Id. at
45. The district court found that this constituted a waiver, having been an
“intentional or voluntary relinquishment of a known right” where the relinquishing
party had “both knowledge of [the right’s] existence and an uncoerced intent to
relinquish it.” Id. at 47–48. (writing that acts constituting waiver “should be so
manifestly consistent with and indicative of an intent to relinquish voluntarily a
particular right that no other reasonable explanation of this conduct is possible”).
Several circuits outside of the Sixth Circuit have mentioned waiver while
analyzing consent or acquiescence. In Nicolson v. Pappalardo, the First Circuit
wrote that agreeing to let a state court determine final custody would be thought of
as “an acquiescence or, alternatively, a waiver of Hague Convention rights.” 605
F.3d 100, 107 (1st Cir. 2010). Respondent also cited to the Fifth Circuit’s opinion
in Larbie v. Larbie, which held “consent for a particular tribunal to make a final
custody determination—which may be established by entry of a temporary custody
order—suffices to establish an affirmative defense under the Convention.” 690
F.3d 295, 309 (5th Cir. 2012) (holding a parent who gave “clear and unequivocal”
consent for a state court to make a final custody determination and did not initiate
custody proceedings abroad “consented” and “acquiesced” under the Hague
Convention). Nevertheless, despite citing to cases where acquiescence was
analyzed, Respondent asserts in her reply that her argument for waiver is “utterly
distinct” from the concept of acquiescence. Dkt. No. 13, p. 3 (Pg. ID 748).
The Ninth Circuit has not treated a decision to file for custody in state court,
without raising Hague Convention claims, as a waiver of Hague Convention rights.
See, e.g., Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir. 2005) (holding that a
federal court was not bound by a state court’s custody decision where the state
court did not actually adjudicate the Hague Convention claim); Holder v. Holder,
305 F.3d 854, 872–73 (9th Cir. 2002) (finding that the petitioner’s suit for custody
in California state court did not exhibit an “uncoerced intent to relinquish” rights
under the Hague Convention).
The Sixth Circuit cases Respondent cited are not on point with her argument
that this case should be dismissed based on waiver before an evidentiary hearing.
See Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007) (finding that the father
did not consent or acquiesce to the mother’s removal of the children); March v.
Levine, 249 F.3d 462, 468–70 (6th Cir. 2001) (finding that the district court
properly rejected fugitive disentitlement argument as a means to deprive the
petitioner of his day in court); Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir.
1996) (analyzing consent and acquiescence).
Reviewing the cases upon which Respondent relies, the Court notes that
each district court held an evidentiary hearing, the factual findings of which were
provided to the Courts of Appeals to review. See Nicolson, 605 F.3d at 103 (noting
that the district court took evidence before writing an “extensive decision”);
Larbie, 690 F.3d at 304 (noting that both parties testified and presented evidence at
a hearing before the district court, followed by written summation of arguments);
Journe, 911 F. Supp. at 44 (noting that the court held a hearing on the merits over
three months after the petition was filed and ordered the parties to submit post-trial
briefing the following month). Respondent has not cited a single case—let alone
binding precedent—where the district court dismissed a Hague Convention claim
based on waiver at the motion to dismiss stage.
In the present case, neither the Michigan nor the Texas state court issued a
final decision on the merits of the parties’ complaints. In fact, the opposite has
occurred: the Texas state court found the Michigan state court had jurisdiction, and
then the Michigan state court stayed its proceedings pending resolution of the
present case. See Dkt. No. 9. Furthermore, the exhibits attached to the motion do
not establish that Petitioner knowingly and intentionally relinquished his Hague
Convention rights before the Texas or Michigan state courts.
The Court does not find that Respondent has proven that Petitioner waived
his Hague Convention rights, when the Court views the facts in the light most
favorable to the nonmoving party. The Court shall hold an evidentiary hearing,
where both sides will be able to present factual evidence. Respondent is welcome
to address any of the narrow exceptions to the Hague Convention at this hearing.
The Court shall also order the parties to submit post-hearing briefs, summing up
their arguments, to be submitted two weeks after the hearing takes place.
Accordingly, for the reasons discussed in detail above, the Court DENIES
Respondent’s Motion to Dismiss .
IT IS FURTHER ORDERED that the parties shall appear for a status
conference to set dates for an evidentiary hearing on Thursday, August 10, 2017 at
IT IS SO ORDERED.
August 2, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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