Ostos v. Vega

Filing 16

MEMORANDUM OPINION AND ORDER: The court denies the 13 Motion to Dismiss; denies the Request for Expedited Discovery; denies the Request for Appointment of a Guardian Ad Litem; and grants the Request for Keeping Status Quo During Pendency of Litigation. The court directs Respondent to file an answer to the Petition by 2/23/2015. (Evidentiary Hearing set for 3/9/2015 at 09:00 AM before Judge Sam A Lindsay.) (Ordered by Judge Sam A Lindsay on 2/11/2015) (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BERNICE VEGA OSTOS,
Petitioner,
v.
JOSE ALFREDO VEGA,
Respondent.

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Civil Action No. 3:14-CV-3935-L

MEMORANDUM OPINION AND ORDER
Before the court is the Motion to Dismiss, Request for Expedited Discovery, Request for
Keeping Status Quo During Pendency of Litigation, and Request for Appointment of a Guardian Ad
Litem (Doc. 13), filed December 30, 2015. After carefully considering the motion and requests for
relief, briefs, pleadings, record, and applicable law, the court denies the Motion to Dismiss; denies
the Request for Expedited Discovery; denies the Request for Appointment of a Guardian Ad Litem;
and grants the Request for Keeping Status Quo During Pendency of Litigation (Doc. 13).
I.

Factual and Procedural Background
On November 6, 2014, Petitioner Bernice Vega Ostos (“Ms. Vega-Ostos” or “Petitioner”)

brought this action against Defendant Jose Alfredo Vega (“Mr. Vega” or “Respondent”) pursuant
to the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), Oct.
25, 1980, T.I.A.S. No. 11670, S. Treaty Doc, No. 99–11, which is implemented in the United States
through the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9003, et seq. Ms.
Vega-Ostos and Mr. Vega are the parents of J.G.V., who is eight years old. Ms. Vega-Ostos alleges
in her Petition for Return of Child (“Petition”) that, in removing J.G.V. from his habitual residence
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in Mexico, where J.G.V. resided with his mother, and bringing him to the United States to reside
with his father in Dallas, Texas, Mr. Vega violated her custody rights under Mexican law and the
parties’ custody agreement under a Final Decree of Divorce entered on November 8, 2012, by the
302nd Judicial District Court, Dallas County, Texas. Ms. Vega-Ostos seeks an order requiring Mr.
Vega to return J.G.V. to Mexico. Pending a hearing in this court, Ms. Vega-Ostos requests: that she
be given immediate access to J.G.V.; that Mr. Vega be prohibited from removing J.G.V. from the
jurisdiction; that Mr. Vega be required to turnover to the court J.G.V.’s travel documents; and that
the court set an expedited hearing on her Petition. Ms. Vega-Ostos also seeks to recover her
attorney’s fees and costs incurred as a result of this action.
On December 30, 2014, Mr. Vega moved to dismiss the action, contending that it does not
fall under the ICARA and instead merely involves the issue of whether a modification of the parties’
custody agreement should be granted by the 302nd Judicial District Court, Dallas County, Texas,
which entered the parties’ Final Decree of Divorce. Mr. Vega asserts that he filed a motion with the
state court to modify the parties’ parent-child relationship as to J.G.V. on August 12, 2014. Mr.
Vega contends that he has lived in Dallas County for several years and has never hidden from Ms.
Vega-Ostos the whereabouts of J.G.V., who is currently residing with him and attending school in
Texas.
Mr. Vega contends that, even assuming that the ICARA applies, Ms. Vega-Ostos cannot
establish the requisite prima facie case under the ICARA because: (1) J.G.V. is not a habitual
resident of Mexico; and (2) he is not in breach of any custody or court order. According to Mr.
Vega, he is a joint managing conservator under the Final Divorce Decree and, as such, has the right
to ensure that J.G.V. is not placed in harm’s way. Mr. Vega further asserts that he has affirmative

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defenses under Article 13 of the Convention that would allow J.G.V. to remain in his custody in the
United States. Mr. Vega contends that returning J.G.V. to Mexico would subject him to a grave risk
of physical or psychological harm or otherwise place J.G.V. in an intolerable situation. In addition,
Mr. Vega contends that J.G.V objects to returning to Mexico, and that J.G.V. has reached an age and
level of maturity appropriate for the court to take into account J.G.V’s view as to whether he should
be returned to Mexico. Mr. Vega therefore requests that Petition filed by Ms. Vega-Ostos be denied
and dismissed.
Pending resolution of his motion and the Petition, Mr. Vega requests that the court appoint
a guardian ad litem and allow him to retain custody of J.G.V. Mr. Vega also requests that he be
permitted to conduct unspecified discovery “to assist the Court at the final hearing.” Def.’s Mot. 15.
In addition, Mr. Vega seeks to recover attorney’s fees and costs of suit.
Ms. Vega-Ostos responds that Mr. Vega’s motion should be denied in its entirety because
it contravenes the express objectives of the Convention, which is ensure the prompt return of
children wrongfully removed or retained internationally to the state or country of their habitual
residence. Ms. Vega-Ostos contends that the court has jurisdiction over this action under the
Convention and the ICARA, and that this case and the relief requested have nothing to do with
modification of the parties’ custody agreement. Ms. Vega-Ostos further contends that her verified
Petition establishes a prima facie case for relief under the Convention, whereas Defendant’s
affirmative defenses are based on nothing more than unsupported assertions. Additionally, Ms.
Vega-Ostos contends that Mr. Vega’s request to maintain the status quo and retain custody of J.G.V.
pending resolution of this action is contrary to the Convention’s purpose of restoring the preabduction status quo and to deterring parents from crossing borders in search of more sympathetic

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forums. Finally, Ms. Vega-Ostos maintains that neither expedited discovery nor appointment of a
guardian ad litem is necessary in this case for the court to make appropriate determinations with
respect to J.G.V.
Mr. Vega replies that this is not a case of a parent crossing the border in search of a more
sympathetic forum and does not involve the abduction of a child but instead involves an ongoing
dispute between two managing conservators concerning the well-being of their child. Mr. Vega
contends that the 302nd Judicial District Court has “continuing, exclusive jurisdiction” over J.G.V.’s
welfare and best interests. Mr. Vega therefore contends that Ms. Vega-Ostos should have sought to
enforce her parental rights under the Final Divorce Decree in the 302nd Judicial District Court, rather
than federal court. Mr. Vega therefore asks that the court defer to the proceeding pending in the
302nd Judicial District Court on his motion to modify the parties’ parent-child relationship as to
J.G.V.
Briefing on Defendant’s motion to dismiss was complete on January 27, 2015, and it is ripe
for consideration.
II.

Standard for Rule 12(b)(6) - Failure to State a Claim
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517
F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir.
2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

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possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). While a complaint need not contain detailed factual allegations, it must
set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The “[f]actual allegations of [a
complaint] must be enough to raise a right to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id. (quotation marks,
citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer
more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled
to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to
it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise,
“‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to [the plaintiff’s] claims.’” Id.
(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). In
this regard, a document that is part of the record but not referred to in a plaintiff’s complaint and not
attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion.
Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012) (citation omitted).

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The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim
when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan
Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint
are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.” Iqbal, 556
U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences favorable to the
plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions.
R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not
evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has
pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355
F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with a Rule 12(b)(6) motion,
its task is to test the sufficiency of the allegations contained in the pleadings to determine whether
they are adequate enough to state a claim upon which relief can be granted. Mann v. Adams Realty
Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th
Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th Cir. 1997) (en banc). Accordingly, denial
of a 12(b)(6) motion has no bearing on whether a plaintiff ultimately establishes the necessary proof
to prevail on a claim that withstands a 12(b)(6) challenge. Adams, 556 F.2d at 293.
III.

Analysis
The Convention was adopted to address the problem of international child abductions in

connection with domestic disputes. Abbott v. Abbott, 560 U.S. 1, 8 (2010). The purpose of the
Convention is to “to secure the prompt return of children wrongfully removed to or retained in any
Contracting State,” and “to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.” Id. (quoting Convention,

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art. 1). Under the Convention, a child who is abducted in violation of “rights of custody” must be
returned to the child’s country of habitual residence, unless certain exceptions apply.” Abbott, 560
U.S. at 5.
The Convention is implemented through the ICARA. Id. Under the ICARA, state courts and
federal district courts have concurrent original jurisdiction over actions arising under the Convention.
22 U.S.C. § 9003(a). A person, who seeks the return of a child wrongfully removed or retained, or
seeks to exercise rights of access to a child under the Convention, may file a petition for relief “in
any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction
in the place where the child is located at the time the petition is filed.”

Id. § 9003(b). It is

undisputed that J.G.V. was located in Dallas County, Texas, when Ms. Vega-Ostos filed her Petition
under the Convention. The court therefore has jurisdiction over this action, and, for the reasons
herein explained, it is irrelevant whether there is a motion pending to alter the parties’ custody
agreement in state court.
When a child under sixteen years of age has been wrongfully removed or retained and less
than one year has elapsed between the alleged wrongful removal or retention and the commencement
of return proceedings, the court in the country to which the child has been brought must “order the
return of the child forthwith,” unless one of the Convention’s limited exceptions apply. Abbott, 560
U.S. at 9; 51 Fed. Reg. at 10507. Even when return proceedings are initiated after the expiration of
one year, Article 12 of the Convention requires return of the child unless it is shown that the child
is settled in his or her new environment. Id.
A parent’s removal or retention of a child is considered wrongful “when he or she removes
or retains the child outside the child’s country of habitual residence, and this removal: breaches the

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rights of custody accorded to the other parent under the laws of that country; and, at the time of
removal, the non-removing parent was exercising those custody rights.” Appellant v. Sealed
Appellee, 394 F.3d 338, 343 (5th Cir. 2004) (citing Convention, art. 3). “[R]ights of custody” are
“rights relating to the care of the person of the child and, in particular, the right to determine the
child’s place of residence.” Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). Pursuant to
Article 3 of the Convention, rights of custody may arise from operation of law, from a judicial or
administrative decision, or from a legally binding agreement. Convention, art. 3. Neither the
Convention nor ICARA defines “habitual residence.” Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.
2012), cert. denied, ––– U.S. ––––, 133 S. Ct. 1455 (2013). “The inquiry into a child’s habitual
residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the
circumstances of each case.” Id. (citation omitted).
Article 5 of the Convention also recognizes “rights of access,” which include “the right to
take a child for a limited period of time to a place other than the child’s habitual residence.” Abbott,
560 U.S. at 9; Convention, art. 5(b). The Convention, however, does not include a similar return
remedy for breach of “rights of access,” for example, when a custodial parent removes a child from
his country of habitual residence in breach of the other parent’s visitation rights. Abbott, 560 U.S.
at 9. It is irrelevant under the Convention “whether there is a custody dispute concerning [the] child
pending at the time of removal.” Appellant, 394 F.3d at 343. The Convention’s return remedy does
not change custody rights that existed prior to the wrongful removal of a child and is not a
determination regarding the merits of any custody issue. Abbott, 560 U.S. at 9 (citing Convention,
art. 19). If a petitioner shows by a preponderance of the evidence that the removal or the retention

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of the child was wrongful, the burden shifts to the respondent to prove an applicable affirmative
defense. See 22 U.S.C. § 9003(e)(1).
Even if the child has been wrongfully removed, return is not required if the removing parent
can establish that an exception under the Convention applies. Abbott, 560 U.S. at 22. The
Convention recognizes several narrow affirmative defenses if a respondent “opposes the return of
the child.” Convention, arts. 12, 13, 20; 22 U.S.C. 9003(e)(2). A respondent may show by clear and
convincing evidence that there is a “grave risk that [the child’s] return would expose the child to
physical or psychological harm or otherwise place the child in an intolerable situation.” Convention,
art. 13(b); 22 U.S.C. 9003(e)(2)(A). A respondent may show by clear and convincing evidence that
the return of the child “would not be permitted by the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms.” Convention, art. 20; 22
U.S.C. 9003(e)(2)(A). Pursuant to Article 12, if the petition is filed more than one year after the
removal, a respondent may argue that the child is now “well-settled” in his or her new environment.
Convention, art. 12; 22 U.S.C. 9003(e)(2)(B). This defense must be established by a preponderance
of the evidence. Id. It is also a defense to wrongful removal if a respondent can show by a
preponderance of the evidence that the petitioner was “not actually exercising the custody rights at
the time of removal or retention,” or that the petitioner “had consented to or subsequently acquiesced
in the removal or retention.” Convention, art. 13(a); 22 U.S.C. 9003(e)(2)(B).
A.

Motion to Dismiss

Ms. Vega-Ostos alleges in her Petition that she had custodial rights under Mexican law and
the exclusive right under the parties’ divorce decree to designate J.G.V.’s primary residence without
regard to geographic location; that J.G.V. has been a habitual resident in Mexico “since shortly after

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his birth” until he was wrongfully removed from Mexico; and that she was exercising her custodial
rights at the time J.G.V. was wrongfully removed from Mexico by Mr. Vega. Pl.’s Pet. 2-4. Ms.
Vega-Ostos’s pleadings are not verified as she maintains. The Petition is accompanied by a
verification, but Ms. Vega-Ostos did not sign the verification. See Pl.’s Pet. 9. The court
nevertheless determines that Ms. Vega-Ostos’s factual allegations, while sparse, are sufficient to
state a claim for wrongful removal and return under the Convention. Although Mr. Vega asserts that
he has affirmative defenses under the Convention, dismissal of Ms. Vega-Ostos’s Petition is not
appropriate under Rule 12(b)(6), as the facts supporting his affirmative defenses and Ms. VegaOstos’s claim under the Convention will need to be developed in an evidentiary hearing. Further,
as explained, it is irrelevant for purposes of the Convention whether Mr. Vega has filed a motion in
state court to alter the parties’ custody arrangement. The court therefore denies the Motion to
Dismiss.
B.

Request for Expedited Discovery

The Convention requires courts to “act expeditiously in proceeding for the return of
children.” Convention, art. 11. Mr. Vega’s request for discovery, even on an expedited basis, would
necessarily delay the proceedings in this case. Moreover, Mr. Vega does not explain what discovery
is needed. The court therefore denies the Request for Expedited Discovery.
C.

Request for Appointment of a Guardian Ad Litem

Federal Rule of Civil Procedure 17(c)(2) requires a court to appoint a guardian ad litem for
a minor whose interests are not represented in an action. Fed. R. Civ. P. 17(c)(2); see Sanchez v.
R.G.L., 761 F.3d 495, 508 (5th Cir. 2014) (concluding that appointment of guardian ad litem was
necessary because the children’s physical and temporary guardians had not advocated on behalf of
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the children in district court proceeding under the Convention). Mr. Vega has not set forth any
specific reason as to why he believes appointment of a guardian ad litem is necessary in this case,
and the court determines that J.G.V.’s fundamental interests under the Convention are adequately
represented, as both parties are making an effort in this case to represent those interests. The court
therefore denies the Request for Appointment of a Guardian Ad Litem.
D.

Request for Keeping Status Quo During Pendency of Litigation

Mr. Vega essentially requests to retain custody of J.G.V. pending the resolution of this action.
In response, Ms. Vega-Ostos contends that allowing Mr. Vega to retain J.G.V. pending the resolution
of this action would constitute an improper custody decision by the court and contravene the
Convention’s purpose of restoring the pre-abduction status quo and to deterring parents from
crossing borders in search of a more sympathetic forum. The court disagrees with Ms. Vega-Ostos’s
assertion that a ruling by this court to maintain the status quo during the pendency of this action will
amount to a custody determination. Further, while the court agrees that the purpose of the
Convention is to secure the prompt return of children wrongfully removed or retained, there has been
no determination yet as to whether J.G.V. was wrongfully removed from Mexico, and there is no
indication that J.G.V. will be in harm’s way if allowed to remain with his father pending resolution
of this action. For this reason, and because neither party has pointed the court to any authority
dealing with a request to maintain the status quo during the pendency of a claim under the
Convention, the court grants the Request for Keeping Status Quo During Pendency of Litigation.
IV.

Conclusion
For the reasons herein stated, the court denies the Motion to Dismiss; denies the Request for

Expedited Discovery; denies the Request for Appointment of a Guardian Ad Litem; and grants the
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Request for Keeping Status Quo During Pendency of Litigation (Doc. 13). Because of the expedited
nature of proceedings under the Convention, the court directs Respondent to file an answer to the
Petition by February 23, 2015, and will conduct an evidentiary hearing on Petitioner’s claim and
Respondent’s affirmative defenses under the Convention on March 9, 2015, at 9 a.m. Further,
Respondent shall not remove J.G.V. from Dallas County, Texas, pending resolution of this action
unless the court, in writing, specifically allows the removal.
It is so ordered this 11th day of February, 2015.

_________________________________
Sam A. Lindsay
United States District Judge

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