Lisandro Patrick v. Noelia Rivera-Lopez

United States Court of Appeals
For the First Circuit
No. 12-2413
LISANDRO PATRICK,
Petitioner, Appellant,
v.
NOELIA RIVERA-LOPEZ,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
[Hon. Camille L. Velez-Rive, U.S. Magistrate Judge]
Before
Howard, Circuit Judge,
Souter, Associate Justice, *
and Stahl, Circuit Judge.
Stephen J. Cullen, with whom Kelly A. Powers and Miles &
Stockbridge P.C. were on brief, for appellant.
Maricarmen Carrillo-Justiano, with whom Janice Gutierrez-
Lacourt and Servicios Legales de Puerto Rico, Inc. were on brief,
for appellee.
February 1, 2013
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme *
Court of the United States, sitting by designation.

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HOWARD, Circuit Judge. Lisandro Patrick appeals a
decision of the United States District Court for the District of
Puerto Rico dismissing his petition for the return of his child
under the Hague Convention on the Civil Aspects of Child Abduction.
He also appeals the district court's order that he post a bond to
proceed with the case. We reverse the district court's dismissal
of his petition and vacate the order imposing a bond.
I. Background
This appeal follows the district court's grant of a
motion to dismiss. As we explain below, the motion to dismiss is
more properly treated as a motion for judgment on the pleadings.
When deciding an appeal of a motion for judgment on the pleadings,
"[w]e view the facts contained in the pleadings in the light most
flattering to the nonmovants . . . and draw all reasonable
inferences therefrom in their favor." Aponte-Torres v. Univ. of
P.R., 445 F.3d 50, 54 (1st Cir. 2006).
A. Abduction of Patrick's Daughter
Appellant Lisandro Patrick and Appellee Noelia
Rivera-Lopez are the biological parents of L.N.R., a girl born in
Puerto Rico in 2009. For purposes of this appeal, it is
uncontested that before L.N.R.'s birth, Patrick signed an affidavit
acknowledging paternity. Nevertheless, L.N.R.'s birth certificate
does not list a father. Patrick and Rivera were unmarried when
L.N.R. was born, but they married in Puerto Rico in June 2010.
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Patrick and Rivera agreed that after the marriage,
Patrick would move to the United Kingdom and that Rivera would
follow with her children (L.N.R. and a child from another father)
as soon as Patrick could set up the family home and earn enough
money to pay for the family's travel. In January 2011, Rivera and
her children moved to the United Kingdom, where they stayed with
Patrick. L.N.R. made friends and attended various play groups
there, and the family received medical care from England's National
Health Service, as well as other public benefits. Patrick and
Rivera applied for a Residence Card for L.N.R. in June 2011.
In March 2012, Rivera absconded to Puerto Rico with her
children. When Patrick discovered that Rivera had taken her
children to Puerto Rico and did not intend to return to the United
Kingdom, he filed a petition for the return of L.N.R. in the United
States District Court for the District of Puerto Rico under the
Hague Convention on the Civil Aspects of International Child
Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89 ("Hague Convention" or "Convention"), as well as
its implementing statute, the International Child Abduction
Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11610. The petition 1
alleged that Rivera wrongfully removed L.N.R. from her habitual
residence, the United Kingdom.
Patrick did not petition for the return of Rivera's other 1
child because he is not the child's biological father.
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B. District Court Proceedings
On the day that he filed his petition, Patrick asked the
district court to expedite his case and issue an order to show
cause to ensure that Rivera would appear in court with L.N.R. The
next business day, the case was assigned to a judge, who
immediately issued an order to show cause requiring Rivera to
appear with L.N.R. at a hearing four days later. The order,
however, also required Patrick to post a $10,000 surety bond.
Patrick moved to vacate the bond requirement, in part on the
grounds that Article 22 of the Hague Convention prohibits a court
from requiring a bond "to guarantee the payment of costs and
expenses." Patrick pointed out that he was currently unemployed
and receiving pro bono legal assistance. In the alternative, he
asked the court to reduce the bond to $500. That same day, the
district court issued a minute order in which it refused to vacate
the bond requirement but reduced the bond to $500. At the show
cause hearing the next day, the court appointed counsel for Rivera,
ordered her to remain in Puerto Rico with L.N.R., and set an
evidentiary hearing.
After a series of scheduling difficulties, the parties
consented to proceed before a magistrate judge. In consultation
with the parties, the magistrate judge scheduled a non-jury trial
for October 12, 2012. Rivera answered Patrick's petition,
admitting that he is L.N.R.'s father.
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On the eve of trial, October 11, Rivera moved to dismiss
Patrick's petition under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted.
Rivera argued in part that removal of a child is "wrongful" under
the Hague Convention only if "it is in breach of [a person's]
rights of custody," Hague Convention art. 3, and that Patrick had
no rights of custody under the Convention because he was not
registered as L.N.R.'s father in her birth certificate. The
magistrate judge granted Rivera's motion to dismiss on the ground
that Patrick never presented his affidavit of paternity to Puerto
Rico's Vital Statistics Registry. Patrick v. Rivera-Lopez, Civil
No. 12–1501 (CVR), 2012 WL 5462677 (D.P.R. Nov. 8, 2012). Patrick
timely appealed the dismissal of his petition, as well as the bond
requirement.
II. Analysis
A. Dismissal Under Federal Rule of Civil Procedure
12(b)(6)
Patrick's first complaint about the dismissal of his
petition is procedural: Rivera filed her motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) long after the deadline
for responsive pleadings, and after she had filed her answer.
Patrick is correct that this motion was untimely because "[a]
motion asserting [a defense listed in Rule 12(b)] must be made
before pleading if a responsive pleading is allowed." Fed. R. Civ.
P. 12(b). Instead of deciding the motion under Rule 12(b)(6), the
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district court should have treated it as a motion for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c). Aponte-
Torres, 445 F.3d at 54.
The court's reliance on the wrong rule, however, was
inconsequential. Converting the grounds for a motion from Rule
12(b)(6) to Rule 12(c) "does not affect our analysis inasmuch as
the two motions are ordinarily accorded much the same treatment."
Id. "Rule 12(c) does not allow for any resolution of contested
facts; rather, a court may enter judgment on the pleadings only if
the uncontested and properly considered facts conclusively
establish the movant's entitlement to a favorable judgment." Id.
Nothing about the district court's judgment suggests that the
result would have been different if the court had converted the
motion. We will treat Rivera's motion to dismiss as a motion for
judgment on the pleadings, and we will review the district court's
decision de novo. Id. at 55.
B. Patrick's Entitlement to Relief Under the Hague
Convention
1. The Hague Convention and United Kingdom Law
"The [Hague] Convention was adopted in 1980 in response
to the problem of international child abductions during domestic
disputes. The Convention seeks 'to secure the prompt return of
children wrongfully removed to or retained in any Contracting
State,' and 'to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the
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other Contracting States.'" Abbott v. Abbott, 130 S. Ct. 1983,
1989 (2010) (quoting Hague Convention art. 1).
The Convention provides that removal of a child is
wrongful when
[(a)] it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention; and
[(b)] at the time of removal or retention
those rights were actually exercised, either
jointly or alone, or would have been so
exercised but for the removal or retention.
Hague Convention art. 3 (emphasis added). "Rights of custody"
include "rights relating to the care of the person of the child
and, in particular, the right to determine the child's place of
residence." Id. art. 5. "Where a child has been wrongfully removed
or retained in terms of Article 3 . . . the authority concerned
shall order the return of the child forthwith." Id. art. 12.
The United States has implemented the Convention through
ICARA, which authorizes a person who seeks a child's return to file
a petition in state or federal court. 42 U.S.C. § 11603(a)-(b).
The court "shall decide the case in accordance with the
Convention." Id. § 11603(d). If the child has been "wrongfully
removed or retained within the meaning of the Convention," the
child shall be "promptly returned," subject to certain exceptions.
Id. § 11601(a)(4).
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Given this framework, Patrick must allege facts
sufficient to show that he has "rights of custody . . . under the
law of the State in which the child was habitually resident
immediately before the removal or retention." Hague Convention
art. 3. Patrick alleged in his petition that L.N.R.'s habitual
residence is the United Kingdom. For purposes of this appeal,
Rivera does not dispute this allegation. Therefore, Patrick's
rights of custody are determined with respect to United Kingdom
law.
To evaluate Patrick's rights of custody under United
Kingdom law, we must follow a trail of statutes. Our starting
point is the law's description of "parental responsibility," which
Patrick and Rivera agree is tantamount to "rights of custody":
"Where a child's father and mother were married to each other at
the time of his birth, they shall each have parental responsibility
for the child." Children Act, (1989) § 2(1). On its face, this 2
provision would appear not to apply to Patrick and Rivera, who
married after L.N.R.'s birth, but "[r]eferences in this Act to a
child whose father and mother were . . . married to each other at
the time of his birth must be read with section 1 of the Family Law
Reform Act 1987 (which extends their meaning)." Id. § 2(3). That
section states that "references to a person whose father and mother
The National Archives of the United Kingdom has made these 2
statutes available at http://www.legislation.gov.uk/.
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were married to each other at the time of his birth include . . .
references to any person to whom subsection (3) below applies."
Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to
"any person who . . . is a legitimated person within the meaning of
section 10 of [the Legitimacy Act 1976]." Id. § 1(3). That
section defines "legitimated person" to include "a person
legitimated or recognised as legitimated . . . under section 2 or
3 above," Legitimacy Act, (1976) § 10(1), and Section 3 of the
Legitimacy Act 1976 provides that
where the parents of an illegitimate person
marry one another and the father of the
illegitimate person is not at the time of the
marriage domiciled in England and Wales but is
domiciled in a country by the law of which the
illegitimate person became legitimated by
virtue of such subsequent marriage, that
person, if living, shall in England and Wales
be recognised as having been so legitimated
from the date of the marriage.
Id. § 3 (emphasis added). Based on these statutes, we conclude (as
did the district court) that L.N.R.'s removal was wrongful under
the Hague Convention if L.N.R. became legitimated under Puerto Rico
law by virtue of Patrick's marriage to Rivera.3
United Kingdom law provides other means for a father to 3
obtain parental responsibility, but Patrick does not allege that he
has complied with them.
With his petition, Patrick filed a letter from the
International Child Abduction and Contact Unit (a unit of Ministry
of Justice's Official Solicitor) stating that "[t]he parents are
married to each other and therefore both have parental
responsibility for [L.N.R.], pursuant to Section 2(1) of the
Children Act 1989." It is unclear whether this conclusion followed
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2. Legitimation under Puerto Rico Law
For more than a century, Puerto Rico law has provided
that a child born under the same circumstances as L.N.R. is
legitimated by the subsequent marriage of her parents. When Spain
ceded Puerto Rico to the United States in 1898, the Spanish Civil
Code provided that "natural children," defined as children born out
of wedlock to parents who could have married each other at the time
of conception, may be legitimated by the subsequent marriage of
their parents. Ex Parte Hernández Martínez, 65 P.R.R. 132, 137
(1945). Puerto Rico's Civil Codes of 1902 and 1911 contained
similar laws. Id. at 138, 140-41. Puerto Rico's current law is
the same, except that it no longer requires that a child's parents
be eligible to marry each other at the time of the child's
conception:
The legitimation of children had out of
wedlock shall be accomplished by the
subsequent reciprocal marriage of the parents;
Provided, That there shall be considered as
legitimated children, all children had out of
wedlock prior to the approval of this Act,
whose parents have married each other after
the birth of said children.
P.R. Laws Ann. tit. 31, § 482; see also id. § 501 ("All children
born out of wedlock subsequent to [August 10, 1942], shall be
natural children, whether or not the parents could have married at
from the series of statutes above, or if it was based on an
incorrect assumption that Patrick and Rivera were married when
L.N.R. was born.
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the moment when such children were conceived. These children will
be legitimized by the subsequent marriage of the parents, to each
other.").
Despite this clear language, the district court held that
Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto
Rico law because Patrick did not present his affidavit of paternity
to the Vital Statistics Registry of Puerto Rico. The court stated
that a child born out of wedlock "will not be automatically
considered as begotten by" a man and woman who later marry, unless
they register the child as theirs. Patrick, 2012 WL 5462677, at *6
(citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). The court relied
on León Rosario v. Torres, 9 P.R. Offic. Trans. 1082 (1980), for
the proposition that "Puerto Rico's legislative system allows no
room for liberal interpretation regarding facts of life recorded in
[the] Vital Statistics Registry of Puerto Rico and exceptions [to
the Vital Statistics Registry Act of Puerto Rico] shall be
construed restrictively." Patrick, 2012 WL 5462677, at *6.
Neither opinion on which the district court relied
adequately supports its decision. In Ramos, the Supreme Court of
Puerto Rico decided that a man could represent his minor son in
court based on an affidavit of paternity that he filed with the
Vital Statistics Registry. 67 P.R.R. at 644–45. But the Court did
not hold that filing the affidavit with the Vital Statistics
Registry, as opposed to the mere existence of the affidavit,
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entitled the father to represent his son, and the opinion says
nothing about whether filing the affidavit legitimated the son. In
León Rosario, when the Court stated that the Vital Statistics
Registry Act must be construed narrowly, it was simply rejecting a
claim that the Vital Statistics Registry was required to register
a birth that took place in Massachusetts. 9 P.R. Offic. Trans. at
1089–92.
For her part, Rivera claims that the Supreme Court of
Puerto Rico held in Ex Parte Hernández Martínez that for a child to
be legitimated, both parents must be listed on the child's birth
certificate. The opposite is true; in an opinion that discussed at
length the relationship between acknowledgment and legitimation of
children, the Puerto Rico Supreme Court explained that under the
1911 Civil Code, natural children
were entitled to be legitimated by a
subsequent marriage . . . . [Section 193 of
the 1911 Civil Code] provided that a natural
child might be acknowledged by the father and
mother jointly or by either of them alone,
either in the record of birth, in a will, or
in some other public instrument.
65 P.R.R. at 138. In short, the Court held that the subsequent
marriage of the parents of a natural child legitimizes the child,
whether or not the father appears in the record of birth, as long
as the child is acknowledged in a public instrument.
The 1911 Civil Code has been superseded by laws that
expand the range of ways in which a parent can acknowledge a child.
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Ocasio v. Díaz, 88 P.R.R. 658, 695-98 & n.7 (1963). The Supreme
Court of Puerto Rico has held that under current law, "[t]he
father, or in his default, his heirs, may acknowledge in any way
their children, expressly or impliedly, regardless of the dates or
circumstances of their births and for all legal purposes." Id. at
731 (emphasis added). Because Patrick needed only to acknowledge
L.N.R. "in any way," his affidavit acknowledging L.N.R. as his
daughter sufficed to establish that he is her father. Because
Patrick is L.N.R.'s father, his marriage to Rivera legitimated
L.N.R.4
Rivera also argues that the Supreme Court of Puerto Rico
held in Castro Torres v. Negrón Soto, 159 D.P.R. 568 (2003), that
the subsequent marriage of a child's parents gives rise only to a
presumption of paternity from which the mother's husband can
benefit if he is registered as the child's father. This holding is
inapposite because Patrick's paternity has been settled in this
case: Patrick alleged in his petition that he is the father of
L.N.R., Rivera admitted this allegation in her answer, and no one
else has challenged Patrick's paternity.
In the alternative, Rivera argues that L.N.R. cannot be
legitimated because Puerto Rico's Constitution, as well as one of
In her reply brief, Rivera cites a provision of Puerto Rico 4
law that describes the requirements for an affidavit of
acknowledgment of paternity. P.R. Laws Ann. tit. 8, § 510. This
law is inapplicable here because it merely sets out an expedited
administrative procedure for requesting child support.
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its implementing acts, abolished the distinction between legitimate
and illegitimate children. In 1952, Puerto Rico ratified its
Constitution, which guarantees that "[n]o discrimination shall be
made on account of race, color, sex, birth, social origin or
condition, or political or religious ideas." P.R. Const. art. II,
§ 1 (emphasis added). Later that year, Puerto Rico enacted Act
No. 17, which provides that "[a]ll children have, with respect to
their parents and to the estate left by the latter, the same rights
that correspond to legitimate children." P.R. Laws Ann. tit. 31,
§ 441. Interpreting these laws, the Supreme Court of Puerto Rico
held that
[n]o judicial declaration of the status of
child shall make any pronouncement as to the
legitimacy or illegitimacy of the birth of the
petitioner nor as to the civil status of his
parents. The petitioner shall be simply
called "child" and his progenitors "father" or
"mother," as the case may be.
Ocasio, 88 P.R.R. at 731. On the basis of this holding, Rivera
asks us to conclude that her marriage to Patrick did not legitimate
L.N.R. under Puerto Rico law.
Although Puerto Rico has abolished discrimination against
children based on the circumstances of their birth, it has not
abolished the concept of legitimacy. Act No. 17's reference to
"the same rights that correspond to legitimate children," P.R. Laws
Ann. tit. 31, § 441, presupposes that legitimate children still
exist in Puerto Rico. See Ocasio, 88 P.R.R. at 732 ("Any judicial
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declaration of status of child shall acknowledge and decree that
the child so declared shall have . . . the same rights that
correspond to the legitimate children . . . ."); Perez v. Gardner,
277 F. Supp. 985, 992 (E.D. Wis. 1967) ("[Act No. 17] has been
given a much broader application so as expressly to legitimate a
bastard for all purposes as between parent and child.").
The concept of legitimation still exists as well. Puerto
Rico has never repealed the statute that provides for legitimation
of children by the subsequent marriage of their parents, and the
statute has been cited since Ocasio was decided, both in federal
court and the Supreme Court of Puerto Rico. E.g., Castro Torres,
159 D.P.R. 568, 583 (2003) (certified translation) (citing P.R.
Laws Ann. tit. 31, §§ 481-484); Petition for Naturalization of
Fraga, 429 F. Supp. 549, 551-52 (D.P.R. 1974) (citing P.R. Laws
Ann. tit. 31, § 482); see also Vega ex rel. Morales v. Bowen, 664
F. Supp. 659, 661 (D.P.R. 1987) (citing Ocasio and stating that
"the status of legitimacy is to be preferred over that of
illegitimacy, and compliance with the legal requirements to
establish filiation under the laws of the state of the child's
domicile should be enough to legitimate the child. The status of
legitimacy . . . should be decided by the courts of her domicile,
Puerto Rico." (citation omitted)).
The concepts of legitimacy and legitimation remain
important because the laws of jurisdictions other than Puerto Rico
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may invoke them. Here, we are interpreting a United Kingdom law
that turns on whether Patrick's marriage to Rivera legitimated
L.N.R. under Puerto Rico law. In other cases, the legitimacy of a
child under Puerto Rico law has determined the child's entitlement
to Social Security benefits, Perez, 277 F. Supp. at 991-93, and the
child's eligibility for naturalization, Petition for Naturalization
of Fraga, 429 F. Supp. at 549-52. To hold that a child can no
longer be legitimated under Puerto Rico law, as Rivera asks us to
do, would turn the Puerto Rico Constitution and Act No. 17 on their
heads. It would discriminate against L.N.R. on the basis of her
status at birth--the very result that Puerto Rico law prohibits.
Therefore, we hold that Patrick's marriage to Rivera legitimated
L.N.R. under Puerto Rico law. As a result, Patrick has "parental
responsibility" for L.N.R. under United Kingdom law, which means
that he has "rights of custody" under the Hague Convention. The
district court erred when it dismissed Patrick's petition on the
grounds that he did not have rights of custody.
C. Bond Requirement
As we mentioned above, the district court ordered Patrick
to pay a $10,000 bond, stating that "[t]his bond will serve not
only as a non-resident bond, but shall also respond to any damages
that Respondent may incur should Petitioner not prevail on the
merits." Patrick v. Rivera-Lopez, Civil No. 12–1501 (CVR) (D.P.R.
June 25, 2012) (order to show cause). Patrick moved to vacate the
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bond requirement, arguing that the Hague Convention explicitly
prohibits a court from requiring such a bond: "No security, bond
or deposit, however described, shall be required to guarantee the
payment of costs and expenses in the judicial or administrative
proceedings falling within the scope of this Convention." Hague
Convention art. 22. The district court continued to assert the
authority to impose a bond but reduced the amount of the bond to
$500. In a minute order dated June 28, 2012, the district court
relied on three opinions that refer to instances in which a court
imposed a bond in a Hague Convention case: Whiting v. Krassner,
391 F.3d 540 (3d Cir. 2004); Bekier v. Bekier, 248 F.3d 1051 (11th
Cir. 2001); and Lops v. Lops, 140 F.3d 927 (11th Cir. 1998).
The Hague Convention deprived the district court of
authority to impose a bond on Patrick. We see no distinction
between a bond imposed to "respond to damages that Respondent may
incur should Petitioner not prevail on the merits" and the bond
that the Convention prohibits. The opinions on which the district
court relied refer only in passing to a district court's imposition
of a bond, without saying whether ordering the bond was within the
court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053
& n.2; Lops, 140 F.3d at 948, 964. These opinions offer no reason
to ignore the text of the Convention.
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III. Conclusion
For the reasons above, we reverse the dismissal of
Patrick's petition, vacate the order requiring that Patrick post a
bond, and remand the case to the district court with instructions
to conduct a trial as soon as possible. Mandate shall issue 5
forthwith.
Presumably, the trial will address the issues raised in 5
Rivera's answer to Patrick's petition, including her contentions
that the United Kingdom was not L.N.R.'s habitual residence, that
returning L.N.R. to the United Kingdom would expose her to a grave
risk of harm, and that Patrick consented to L.N.R.'s return to the
United States.
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