In Viteri v Pflucker, 550 F.Supp.2d 829 (ND Ill 2008) on February 28, 2008, petitioner, Carlos Viteri, filed a Petition for Return of Child under the Hague Convention. In his petition, petitioner alleged that he and respondent, Gabriella Maria Pflucker, were the parents of the minor child, Valeria Carla Viteri Pflucker, who was born August 24, 2000, in Lima, Peru. Petitioner alleged that after the parties' relationship ended around October 2003, petitioner obtained visitation rights from the Peruvian courts. Petitioner further alleged that on September 3, 2005, respondent left Peru with the child and traveled to the United States, and did not return to Peru by the time her tourist visa expired on October 3, 2005. According to petitioner, since that time, respondent has neither returned the child to Peru, nor allowed petitioner visitation with the child. Petitioner requested the return of his daughter to Peru under the Convention so that the Peruvian courts may conduct custody proceedings. The respondent stipulated that the child's habitual residence prior to her retention of the child in the United States was Peru. Neither party addressed the issue of wrongful removal or wrongful retention. As respondent obtained a court's permission to travel with the child to the United States for 30 days, for the purposes of this motion the court referred to respondent's actions as those of wrongful retention. Peru acceded to the Convention on May 28, 2001, the Convention entered into force in Peru on August 1, 2001, and that the Convention did not enter into force between the United States and Peru until June 1, 2007. The Convention entered into force for the United States on July 1, 1988. Respondent moved to dismiss the petition for lack of subject matter jurisdiction.
Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. Respondent argued this case should be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) because the Convention only applies to wrongful removals or retentions occurring after its entry into force in Contracting States and that the Convention was not in force between the United States and Peru at the time of the child's wrongful retention in this case. Respondent moved to dismiss the petition for lack of subject matter jurisdiction. Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. In the court's view, respondent's motion was more appropriate pursuant to Rule 12(b)(6). Petitioner's claims arose under the Convention, and thus, both 28 U.S.C. 1331 and 42 U.S.C. 11603(a) give the court subject matter jurisdiction to adjudicate petitioner's claims. In actuality, respondent's motion did not challenge the court's power to rule but, rather, whether petitioner stated a cause of action entitling him to relief. A few district courts that have looked at similar issues have applied both Rule 12(b)(1) and Rule 12(b)(6) without much discussion. See Taveras v. Taveras, 397 F.Supp.2d 908, 910-913 (S.D.Ohio 2005); Mezo v. Elmergawi, 855 F.Supp. 59, 64 (E.D.N.Y.1994).The Court pointed out that Articles 35 and 38 of the Convention were those which were most pertinent to respondent's motion to dismiss. Article 35 states, "This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States." Article 38 states that the Convention is open to accession by non-member States, and that, "The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession." Article 38 further states that after a State's initial accession, “ The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Thus, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State's accession to the Convention. In this case, there were two primary issues. The first was whether the court should interpret Article 35 liberally to apply to actions where the wrongful removal or retention of a child occurred before the Convention was in force in a particular State, but continued after its entry into force. If the answer to the first inquiry did not allow such a liberal application, the second issue that arises is whether, in light of the language of Article 38, Article 35 applies to wrongful retentions involving Peru and the United States, which occurred after Peru's initial accession to the Convention, but prior to the United States' acceptance of Peru's accession. Initially, petitioner argued that because respondent's wrongful retention of the child had continued following both Peru's accession to the Convention and the United States' acceptance of Peru to the Convention, a liberal interpretation of Article 35 allowed the Convention to apply. Article 35 states that the Convention applies "only to wrongful removals or retentions occurring after its entry into force in those States." Thus, the language of Article 35 clearly limits wrongful removals and retentions subject to the Convention to those that occur after its entry into force. However, both the State Department's legal analysis and the explanatory report by Elisa Perez-Vera, the official Hague Conference reporter for the Convention, suggested that a more liberal interpretation of Article 35 may be appropriate. The Department of State report provides:” Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (1986) (hereinafter State Department Analysis).
Petitioner argued that the court should interpret Article 35 liberally, consistent with the comments of the State Department analysis and Perez-Vera's report, and find that because the child's wrongful retention in the United States continued after the Convention was in force between Peru and the United States, the Convention applies. Respondent argued that the term retention, as used in Article 35, is a solitary event that, in this case, occurred prior to the entry into force of the Convention between Peru and the United States. The court agreed with respondent.
The judicial authority offered by the parties supported the interpretation of "wrongful retention" as a solitary event. [See Taveras, 397 F.Supp.2d at 909; In re H.and In re S., [ (1991) ] 2 A.C. 476 (H.L.)] Moreover, aside from the language of the Convention itself, this interpretation was supported by the negotiation and drafting history of Article 35, as accounted by Perez-Vera. The court declined petitioner's invitation to liberally interpret Article 35 as allowing the Convention to apply to wrongful removals or retentions that occur prior to entry into force, but continue after the entry into force. Consequently, the court considered the static date of the alleged wrongful retention October 3, 2005, and applied Article 35 accordingly.
However, this did not end the inquiry. In this case, the child's alleged wrongful retention occurred prior to the Convention's entry into force between the countries, but following its entry into force in Peru. The Convention entered into force separately in both the United States and Peru prior to the child's removal from Peru and retention in the United States. However, because the Convention had yet to enter into force between those two countries, the issue was whether the alleged wrongful retention in this case was subject to the Convention.
Article 35 of the Convention states that the Convention applies "as between" Contracting States only to wrongful retentions occurring "after its entry into force in those States." However, the Articles of the Convention provide two separate instances at which the Convention "enters into force." In order for a State to accede to the Convention, it must submit an instrument of accession to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Convention, art. 38. Thereafter, both Articles 38 and 43 provide that the Convention shall "enter into force" on the first day of the third calendar month after the deposit of the country's instrument of accession. Convention, arts. 38, 43. However, Article 38 continues, and states that despite an acceding State's instrument of accession, the accession only has effect on the relations between States when a Contracting State declares its acceptance of the accession. Article 38 outlines the effect of accession on the relations between States, stating, The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.Because the Convention offered these two separate times at which the Convention "enters into force," the court had to determine which "entry into force" is referred to in Article 35.The Court found that the language of the Convention favored petitioner's position. Article 35 states that the Convention applies to wrongful retentions occurring "after its entry into force in those States." [See Article 35; Article 38; Article 39; Article 43;]. The drafting history favored an interpretation of Article 35 which applies the Convention to wrongful removals and retentions occurring after the Convention is in force in the State of habitual residence and in the State to which the child is removed or retained, regardless of the time of any other State's acceptance of the new State's accession. The relations between States begin with an application from one to another. Thus, although the Convention applies to a wrongful removal or retention that occurs after a State's instrument of accession is in force, an application for return related to that removal or retention will not have any effect in another Contracting State until that individual Contracting State has accepted the acceding State. After reviewing the above factors, the court found Article 35 requires only that the wrongful removal or retention at issue occur after the Convention enters into force individually in the acceding State and in the State to which the child was removed to or is retained. Accordingly, the court found that the alleged wrongful retention in this case was subject to the Convention because it occurred after the Convention entered into force in both of the relevant States in this action. As a result, respondent's motion to dismiss was denied.
