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Miasik v. Miasik

August 20, 2009

HUBERT JERZY MIASIK, PETITIONER,
v.
AGNIESZKA MIASIK, N/K/A AGNIESZKA MORCHED RESPONDENT.



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow

OPINION AND ORDER

Petitioner Hubert Jerzy Miasik ("Hubert") filed a verified petition seeking the return of his child, Julia Kinga Miasik ("Julia"), to Poland pursuant to the International Child Abduction Remedies Act, codified at 42 U.S.C. §§ 11601 et seq. ("ICARA"). ICARA implements the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, "the Convention"), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980), reprinted at 51 Fed. Reg. 10494 (Mar. 26, 1986), to which the United States and Poland are signatories. The court has original jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 11603(a). Respondent Agnieszka Miasik Morched ("Agnieszka"), Julia's mother, moves to dismiss the petition under Fed. R. Civ. P. 12(b)(6) and, alternatively, for a more definite statement under Fed. R. Civ. P. 12(e).*fn1 For the reasons stated below, Agnieszka's motion [#25] is denied.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). For the purposes of a Rule 12(b)(6) motion, the court takes as true all well-pleaded facts in plaintiff's complaint and draws all reasonable inferences in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999). Factual allegations must, however, be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-236 (3d ed. 2004)); see also Ashcroft v. Iqbal, - U.S -, 129 S.Ct. 1937, 1953, 173 L.Ed. 2d 868 (2009) ("Twombly expounded the pleading standard for all civil actions") (quotation marks and citations omitted). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citations omitted).

In addition to the pleading requirements of the Federal Rules of Civil procedure, the Convention requires that particular information concerning the child be provided in the petition.*fn2

"[T]he petition for return should allege that the child was wrongfully removed or retained by the defendant in violation of custody rights that were actually being exercised by the petitioner" and "state the source of the custody rights, the date of the wrongful conduct, and the child's age at that time." Hague International Child Abduction Convention, Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction at III.C [App. C], 51 Fed. Reg. 10494 (Mar. 26, 1986).

RELEVANT FACTS*fn3

Hubert and Agnieszka are Polish citizens. They were married on December 26, 1996 in Rzeszow, Poland. Julia was born on June 18, 1999. Hubert and Agnieszka were granted a no-fault divorce by order of the district court in Rzeszow on October 18, 2006. The order states in relevant part,

II. [the court] awards parental authority over the minor daughter Julia . . . . to both parents, [and] set[s] the minor's place of residence each time at the place of her mother's - Anieszka Miasik['s] residence;

III. both parents shall be responsible for meeting the costs of the maintenance and upbringing of [Julia]. . . .

Ex. B to Petition (hereinafter "divorce order"). Although Hubert and Agnieszka were divorced in October 2006, the family continued to live together at the same address in Rzeszow for another year, until approximately October 2007 when Agnieszka and Julia moved to a separate apartment in Rzeszow.

In February 2007, Agnieszka sought to have a passport issued for Julia. Hubert objected, fearing that Agnieszka would take Julia to the United States and not return her to Poland. Agnieszka represented to the family court that she was planning only to temporarily visit family in the United States. Based on this assurance, the court granted her request. In late December 2007, Agnieszka took Julia to the United States without notifying Hubert. On January 5, 2008, Agnieszka informed him of the trip and her intention to stay with Julia in the United States for several weeks. In March 2008, Agnieszka again assured Hubert that she intended to return with Julia to Poland. In June 2008, however, Agnieszka informed Hubert that she had secured an apartment for herself and Julia in the United States. Hubert concluded that Agnieszka had no intention of returning with Julia to Poland and, on August 25, 2008, he submitted a formal request for Julia's return with the Polish central authority. Hubert filed this petition on May ...


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