Case Update (13 Oct 2022): Godinez v. Godinez; motion to dismiss denied in Hague Abduction matter

Oct 20

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.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/