with the plaintiff's husband, Abdelaziz Mohammed Elmergawi, a defendant in this action (See Complaint, at P 6). The complaint alleges that the plaintiff and her husband separated on June 13, 1986, after which time, both children lived with the plaintiff (See Complaint, at P 7). After the divorce proceedings were commenced, but prior to determinations relating to the issues of custody, alimony, and/or child support, the complaint alleges that the plaintiff's husband abducted both children on May 20, 1988 and went to Egypt (See Complaint, at P 11). On August 17, 1988, the plaintiff was granted legal custody of both children by order of a Justice of the Supreme Court, Kings County (See Complaint, at P 12).
Thereafter, the plaintiff alleges that she traveled to Egypt and was eventually awarded custody of both children under Egyptian law in an Egyptian Court (See Complaint, at P 14). However, after this award of custody the plaintiff's husband allegedly fled with both children to Libya, where the three presently reside (See Complaint, at P 14).
The plaintiff instituted this action in an attempt to utilize the provisions of the Child Abduction Act and have this Court order the defendant Secretary of State to implement the provisions of the Child Abduction Act and obtain the return of the plaintiff's two children. According to an Executive Order signed by former President Ronald Reagan (Executive Order No. 12648, 53 F.R. 30637 ), the Department of State is designated as the "Central Authority" of the United States for the purposes of the Hague Convention and the Child Abduction Act.
It is the position of the defendant Secretary of State that neither the Child Abduction Act, nor the Hague Convention, apply to this case because neither Egypt nor Libya are signatories to the Hague Convention and are therefore not bound by its requirements. The defendant Christopher moves to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(6).
Motion to Dismiss:
On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'" ( Goldman v. Belden, 754 F.2d 1059, 1065 [2d Cir. 1985] [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)]; see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 [2d Cir. 1993]). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken" ( Samuels v. Air Transport Local 504, 992 F.2d 12, 15 [2d Cir. 1993]; see also Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 [2d Cir. 1993] [citing Samuels, supra, 992 F.2d at p. 15]).
It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient (See Goldman, supra, 754 F.2d at p. 1067) and in doing so, it is well settled that the court must accept the allegations of the complaint as true (see LaBounty v. Adler, 933 F.2d 121, 123 [2d Cir. 1991]; Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 [2d Cir. 1989], cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 ), and construe all reasonable inferences in favor of the plaintiff (See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 ; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 [2d Cir. 1988], cert. denied, 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 ).
The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8[a]), and that "all pleadings shall be so construed as to do substantial justice" (Fed. R. Civ. P. 8[f]). It is within this framework that the Court addresses the present motion to dismiss.
Hague Convention/International Child Abduction Act:
Congress promulgated the International Child Abduction Remedies Act in 1988 in order to implement the provisions of the Hague Convention in the United States (See 42 U.S.C. § 11601[b] ["It is the purpose of this chapter to establish procedures for the implementation of the [Hague] Convention in the United States"]; see also Wanninger v. Wanninger, 1994 WL 143739, at * 2 [D. Mass. Apr. 15, 1994]). Therefore, to determine the scope of the Child Abduction Act, the Court must examine the relevant provisions of the Hague Convention.
The preamble to the Hague Convention states that it was adopted in order "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure prompt return to the State of their habitual residence, as well as to secure protection for rights of access" (Hague Convention, 51 F.R. 10494, 10498 ; see also Friedrich v. Friedrich, 983 F.2d 1396, 1400 [6th Cir. 1993] [addressing purpose of convention]; Currier v. Currier, 845 F. Supp. 916, 920 [D.N.H. 1994] [same]; Klam v. Klam, 797 F. Supp. 202, 205 [E.D.N.Y. 1992] [same]).
Within the meaning of the Hague Convention, the removal of a child from a country is considered 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, Article 3; see also Meredith v. Meredith, 759 F. Supp. 1432, 1434 [D. Ariz. 1991]).