Bartzik Rubio v. Morales Lopez

Background

Franco Bartzik Rubio filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. He sought the return of A.B.M., his six-year-old child, whom he alleged Sandra Leticia Morales Lopez had removed from Mexico without his consent or agreement. The parents were engaged in a custody dispute in Mexico. The parties reached a mediated settlement concerning this case, but the settlement later fell apart.

Morales Lopez moved to dismiss the petition as moot, arguing that A.B.M. was already in Mexico. Although she cited the rule governing failure to state a claim, the court treated the motion as one challenging subject-matter jurisdiction under Rule 12(b)(1). Alternatively, because both parties submitted evidence outside the pleadings, the court stated that it could convert the motion to one for summary judgment under Rule 56. The court concluded that no evidentiary hearing or trial was necessary.

Court’s Analysis

The court explained that a Hague Convention return petition requires proof that the child was habitually resident in one country, was removed to another country in violation of custody rights, and was being kept by the petitioner at the time of removal. The Convention’s return remedy addresses the child’s return to the country of habitual residence; custody decisions remain for the courts of that country.

The court found no dispute that Mexico was A.B.M.’s country of habitual residence. It also found that the record confirmed A.B.M. was in Mexico and likely had been there for nearly the entire case. Morales Lopez submitted a sworn declaration stating that A.B.M. had remained in Mexico since March 12, 2023, except for a three-day shopping trip to McAllen, Texas, and submitted photographs showing A.B.M. in Mexico, including a photograph dated November 3, 2023. Bartzik Rubio did not submit contrary evidence, despite receiving discovery on the child’s location.

The court rejected Bartzik Rubio’s reliance on the exception for disputes that are likely to happen again but end before they can be fully reviewed. Although Bartzik Rubio had previously filed a related Hague Convention petition that was dismissed as moot after Morales Lopez and A.B.M. returned to Mexico, the court found that this did not establish a reasonable expectation that the same dispute would happen again or that future conduct would end too quickly for litigation. The court also did not decide whether that exception can categorically apply in Hague Convention cases because the facts did not support applying it here.

Disposition

The court granted Morales Lopez’s motion and dismissed the petition as moot. It directed the Clerk of Court to enter judgment and close the case. The court emphasized that dismissal did not make the underlying custody dispute moot; custody issues remained for the courts in Mexico. The opinion does not state that the petition was dismissed with or without prejudice.