Mr. Godinez filed a request to have his three children returned to Mexico pursuant to the Hague Abduction Convention on or about June 8, 2022. When Ms. Godinez was appointed pro bono counsel, the counsel filed a Motion to Dismiss pursuant to FRCP Rule 12(b)(1) for lack of subject-matter jurisdiction on August 26, 2022. Mr. Godinez opposed the motion.
Ms. Godinez argued that Mr. Godinez’s petition lacked sufficient facts to establish a prima facie case for return of the children. In other words, he failed to plead facts that evidence he has a right of custody under the law of Mexico. Mr. Godinez responded to the motion by arguing that Ms. Godinez has not submitted documentation to support she has sole custody rights that enable her to unilaterally remove the children from Mexico without his permission. He apparently made the statement that both parents have equal custody rights. [Note – at an evidentiary hearing, it would be Mr. Godinez’s burden to prove a prima facie case, including that he possessed a right of custody]
In resolving Ms. Godinez’s motion to dismiss, the court examined whether her motion presented a facial attack or a factual attack. A facial attack contests the sufficiency of the pleadings. A factual attack concerns an actual failure to comport with jurisdictional prerequisites. The court concluded it was a facial attack, and therefore, it could presume that the factual allegations in Mr. Godinez’s petition are true (at this stage). He filed his petition, alleged that the children were wrongfully removed from Mexico to the U.S., he filed it where the children were located post-removal, and he initiated the action consistent with ICARA. Therefore, he has triggered jurisdiction to file this suit. All of Ms. Godinez’s arguments, while valid, are premature – they need to be addressed later in an evidentiary proceeding to see if Mr. Godinez can actually prove the allegations he asserted.
Therefore, Ms. Godinez’s motion to dismiss is denied.