HOGAN v. HOGAN

Filing 36

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 01/10/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JOSEPH HOGAN,

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Petitioner,
v.
MARILUZ HOGAN,
Respondent.

M E M O R A N D U M

1:16cv1538 (JCC/JFA)

O P I N I O N

This matter is before the Court on Respondent Mariluz
Hogan’s Motion to Dismiss [Dkt. 29] Petitioner Joseph Hogan’s
Petition under the Hague Convention on the Civil Aspects of
International Child Abduction.

For the following reasons, the

Court will deny Respondent’s Motion.
I. Background
The following facts are taken as true for purposes of
the preset Motion.

See E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Petitioner and Respondent married in 2001.

Both are

U.S. citizens, and Petitioner is additionally a citizen of
Brazil.

Petitioner and Respondent have two children together,

GTH and JWH, who are citizens of both the United States and
Brazil.

Respondent is employed by U.S. Immigration and Customs
Enforcement.

In 2012, Respondent accepted a three-year

assignment in Spain as an attaché to the United States embassy
in that country.

Petitioner and the couple’s two children

relocated to Spain in June of 2013, where the family resided for
the following three years.
Shortly before her assignment was to expire,
Respondent informed Petitioner that she intended to file for
divorce, seek a new job, and relocate their children to the
United States.

Petitioner objected to the removal of their

children from Spain, as they were thriving in their Spanish
community.
Several weeks later, in the early hours of November
17, 2016, Respondent removed the children from their home in
Spain without warning and took them to the airport.

Despite

Petitioner’s efforts, Respondent then flew with the children to
the United States.
district.

She has since resided with them in this

Respondent’s assignment in Spain has now terminated,

and Respondent intends to remain in the United States with the
children against Petitioner’s wishes.
On November 29, 2016, Petitioner filed a Petition
under the Hague Convention on the Civil Aspects of International
Child Abduction seeking the return of the children to Spain.
The Petition was transferred from the U.S. District Court for
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the District of Columbia to this Court, and Respondent now moves
to dismiss it pursuant to Federal Rule of Civil Procedure
12(b)(6).
II. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; ‘importantly, a Rule 12(b)(6) motion
does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.’”

Edwards v. City of

Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999) (quoting
Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
In reviewing a motion brought under Rule 12(b)(6), the Court
“must accept as true all of the factual allegations contained in
the complaint,” drawing “all reasonable inferences” in the
plaintiff’s favor.

E.I. du Pont de Nemours & Co., 637 F.3d at

440 (citations omitted).

Generally, the Court may not look

beyond the four corners of the complaint in evaluating a Rule
12(b)(6) motion.

See Goldfarb v. Mayor & City Council of

Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
III. Analysis
Petitioner asks that the Court order his children
returned to Spain pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction, a treaty intended to
“deter parents from taking children across international
boundaries in search of a more sympathetic court to resolve
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custody disputes.”

Alcala v. Hernandez, 826 F.3d 161, 169 (4th

Cir. 2016), cert. denied, 137 S. Ct. 393 (2016).

“The

Convention is based on the principle that the best interests of
the child are well served when decisions regarding custody
rights are made in the country of habitual residence.”
v. Abbott, 560 U.S. 1, 20 (2010).

Abbott

The primary remedy available

under the Convention is a court order mandating the return of a
child to their country of habitual residence.

“Importantly, the

return remedy does not alter the pre-existing allocation of
custody rights between parents; the Convention generally leaves
ultimate custodial decisions to the courts of the country of
habitual residence.”

Alcala, 826 F.3d at 169.

As an initial matter, Petitioner filed an Amended
Petition [Dkt. 33] on the eve of the hearing on this Motion.
“[A]n amended pleading ordinarily supersedes the original and
renders it of no legal effect.” Young v. City of Mount Ranier,
238 F.3d 567, 572 (4th Cir. 2001) (citation omitted).

Under

other circumstances this might warrant denying Respondent’s
Motion to Dismiss, which is directed to Petitioner’s original,
null Petition.

Here, however, the Amended Petition merely adds

allegations incorporating factual contentions raised in
Respondent’s Motion.

The Court therefore treats the Motion as

directed to the Amended, operative Petition.

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Turning to the merits of Respondent’s Motion, the
Court’s analysis is complicated by what seems to be a
substantial gulf between the argument advanced in the Motion
itself and Respondent’s position at oral argument.

Respondent’s

Motion appears to take as its premise that Respondent is
presently entitled to diplomatic immunity in Spain.

Certainly

that was the understanding of the Court, as well as Petitioner’s
understanding in responding to the Motion.
at 11-15.

See Opp. [Dkt. 34]

At oral argument, however, Respondent’s counsel

conceded that neither Respondent, nor her family, presently
enjoys diplomatic immunity in Spain.

This concession is nowhere

in the Motion itself, which repeatedly refers to Respondent’s
diplomatic immunity in the present tense.

See, e.g., Mot [Dkt.

29] at 3 (“The Respondent’s family members, including the
children at issue herein enjoy precisely the same privileges and
immunities as their diplomat Mother. This immunity acts as a
legal barrier which precludes any Spanish court from exercising
personal jurisdiction over Respondent as well as the parties’
children.”) (emphasis added).

For the sake of thoroughness, the

Court addresses both arguments.
Respondent’s Motion argues that the Petition must be
dismissed because the Hague Convention is “inapplicable” to the
custody dispute underlying the Petition.

Specifically,

Respondent’s Motion contends that she and her family are
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entitled to diplomatic immunity in Spain under the Vienna
Convention on Diplomatic Relations due to Respondent’s work as
an attaché to the United States embassy.

The Motion claims that

because her family cannot be haled into Court in Spain, “no
Spanish court has jurisdiction to issue an enforceable custody
order” should the Court order the children returned to that
country.

This would therefore thwart the purpose of ordering

the children returned under the Hague Convention.
The Court finds that Respondent fails to establish
that she presently enjoys diplomatic immunity in Spain.
Respondent’s diplomatic position was of limited duration and its
term has expired.

A letter attached as an Exhibit to

Respondent’s Motion states that she ceased working as an attaché
to the United States embassy in Spain on December 14, 2016.
Article 39 of the Vienna Convention on Diplomatic Relations
provides that “[w]hen the functions of a person enjoying
privileges and immunities have come to an end, such privileges
and immunities shall normally cease at the moment when he leaves
the country, or on expiry of a reasonable period in which to do
so.”

See also Raya v. Clinton, 703 F. Supp. 2d 569, 578 (W.D.

Va. 2010).

As Respondent’s position with the embassy has

terminated and she has left Spain – apparently for good –
Respondent’s diplomatic immunity in Spain has come to an end.

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Accordingly, diplomatic immunity would not bar custody
proceedings initiated in that country.
As noted above, Respondent raised a new argument at
the hearing on this matter.

Admitting that neither she nor her

family is presently entitled to diplomatic immunity in Spain,
she claims that her earlier immunity prevented her children from
accruing “habitual residence” status in that country.

She

contends that her diplomatic immunity created a “bubble” around
her family, such that they could not be considered to reside in
Spain in a legal sense.
Respondent, however, admits that she has no legal
authority to support this novel proposition, and the Court finds
her argument unpersuasive.

Whether a particular place may be

considered a child’s habitual residence is determined by looking
to the parents’ intentions and the child’s acclimatization to
the community.
Cir. 2009).

See Maxwell v. Maxwell, 588 F.3d 245, 251 (4th

This is a factual rather than legal inquiry, see

Reyes v. Jeffcoat, 548 F. App’x 887, 891 (4th Cir. 2013), that
focuses on the practical reality of a child’s situation, and to
which a child’s legal standing in the community is, in and of
itself, largely irrelevant.

Cf. Mozes v. Mozes, 239 F.3d 1067,

1082 n.45 (9th Cir. 2001) (noting that “an unlawful or
precarious immigration status does not preclude one from
becoming a habitual resident under the Convention”).
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Whether or

not Respondent’s children resided in Spain in an abstract legal
sense, they did so in reality.

Only the latter is relevant to

habitual residence under the Hague Convention.

See Redmond v.

Redmond, 724 F.3d 729, 732 (7th Cir. 2013) (“The determination
of habitual residence under the Hague Convention is a practical,
flexible, factual inquiry[.]”).
The Court notes as well that “habitual residence” was
deliberately left undefined by the drafters of the Hague
Convention to avoid “technical rules which can produce rigidity
and inconsistencies as between different legal systems.”

Mozes,

239 F.3d at 1071 (citations omitted); see also Maxwell, 588 F.3d
at 251 (“The framers of The Hague Convention intentionally left
‘habitual residence’ undefined, and intended that the term be
defined by the unique facts in each case.”).

Respondent urges

the Court to adopt an idiosyncratic, legalistic view of habitual
residence that exempts a particular class of children without
regard to their individual circumstances.

To do so would be

inconsistent with the manner in which courts the world over have
interpreted that term.

See Friedrich v. Friedrich, 983 F.2d

1396, 1401 (6th Cir. 1993) (noting that Courts must “resist the
temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term of
art as common law domicile,” focusing instead on the “facts and
circumstances of each case”) (quoting In Re Bates, No. CA
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122.89, High Court of Justice, Family Div’n Ct. Royal Court of
Justice, United Kingdom (1989)).
Finally, Respondent’s proposed rule would disserve the
purposes of both the Hague Convention and the Vienna Convention.
The Hague Convention posits that the interests of children are
paramount in custody proceedings, and best served by the
adjudication of such proceedings in their country of habitual
residence.

See Abbott, 560 U.S. at 20.

Respondent’s argument –

that a parent’s diplomatic status prevents a child from accruing
“habitual residence” in a country, even if the child has in fact
become acclimatized to that country – elevates a legal fiction
above the presumed interests of children.

Respondent’s rule

would also prevent diplomats entitled to immunity under the
Vienna Convention from recovering their own abducted children,
rendering diplomats second-class parents.

Such a rule would

hardly facilitate the smooth functioning of diplomatic missions.
As Respondent’s argument at the hearing on this matter
was vague, another possibility occurs: it may be that Respondent
is claiming the Vienna Convention prevented Petitioner from
enjoying custodial rights under Spanish law, and thus the
removal of GTH and JWH from Spain was not wrongful under the law
of that country.
If this is indeed what Respondent intended to argue,
Respondent has again provided the Court with no authority to
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support her position.

To the Court’s knowledge, only one other

case has addressed this issue.

In Pliego v. Hayes, 86 F. Supp.

3d 678 (W.D. Ky. 2015), the wife of a Spanish diplomat residing
in Turkey abducted their son and brought him to the United
States.

The diplomat filed a petition under the Hague

Convention, and the court determined the child’s habitual
residence to be Turkey.

See id. at 696-97.

The court rejected

the mother’s argument that the father’s diplomatic status
prevented him from meaningfully possessing custodial rights in
Turkey, reasoning that nothing in Turkish law precluded him from
doing so.

See id. at 697-98.
The Court agrees that this is the proper approach.

The Vienna Convention provides “absolute immunity from criminal
prosecution and protection from most civil and administrative
actions,” which is to say immunity from the enforcement of local
law.

Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996).

In

addition, diplomats are immune from the receiving state’s
“jurisdiction to prescribe” to the extent that laws effecting
their position, such as laws regulating employment and national
service, are “incompatible with . . . diplomatic status.”
Restatement (Third) of Foreign Relations Law § 464 (1987).
Beyond this, however, “a diplomatic agent is subject to law
generally” in the receiving state.

Id.

Diplomats and their

families do not exist the legal “bubble” Respondent posits.
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Respondent fails to explain how Spain’s child custody
laws are “incompatible with . . . diplomatic status.”

Id.

The

Court cannot see how they could be. Respondent’s family was
therefore subject to those laws at the time she allegedly
abducted GTH and JWH.
IV. Conclusion
Respondent does not presently enjoy diplomatic
immunity in Spain, nor does her prior enjoyment of immunity
warrant dismissing the instant Petition.

As such, Respondent’s

Motion must be denied.
An appropriate order will issue.

January 10, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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