MEMORANDUM OPINION AND ORDER Petitioner Franco Bartzik Rubio and Respondent Sandra Leticia Morales Lopez are former spouses who are engaged in a bitter custody fight in Mexico over their six-year-old child, A.B.M. Earlier this year, Bartzik Rubio filed this petition (“Petition”) under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), Oct. 25, 1980, 51 Fed. Reg. 10498, 19 I.L.M. 1501, and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§9001-9011. The Petition seeks “the return” of A.B.M., who was allegedly “removed from Mexico” to this District by Morales Lopez without Bartzik Rubio’s “consent or acquiescence.” ECF No. 1 (“Pet.”), 1. At the Court’s prompting, the parties agreed in mediation to a resolution of this case (albeit not the underlying custody battle), see ECF No. 54, but regrettably their settlement later fell apart, see ECF No. 57. Morales Lopez now moves to dismiss the case as moot on the ground that A.B.M. is already in Mexico. Morales Lopez invokes Rule 12(b)(6) of the Federal Rules of Civil Procedure, see ECF No. 37; ECF No. 37-1 (“Resp’t's Mem.”), at 1, but her motion is properly construed as a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), see, e.g., Cortland St. Recovery Corp. v. Deutsche Bank AG, No. 12-CV-9351 (JPO), 2013 WL 3762882, at *1 n.1 (S.D.N.Y. July 18, 2013).1 Although the party alleging jurisdiction typically bears the burden of proving it, see, e.g., Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), the party arguing that a case has become moot — here, Morales Lopez — bears the burden with respect to mootness, and that burden “is a heavy one.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (internal quotation marks omitted); Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603 (2d Cir. 2016); Int’l Refugee Assistance Project, Inc. v. U. S. Citizenship & Immigr. Servs., 551 F. Supp. 3d 136, 152-53 (S.D.N.Y. 2021). That is because, “by the time mootness is an issue, the case has been brought and litigated, often…for years. To abandon the case at an advanced stage may prove more wasteful than frugal.” Friends of Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191-92 (2000). The Court finds that Morales Lopez has carried her burden and that the case must be dismissed as moot. “To prevail on a Hague Convention child custody claim, a petitioner must establish by a preponderance of the evidence that: ‘(1) the child was habitually resident in one State and has been removed to…a different State; (2) the removal…was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal.’” Daunis v. Daunis, 222 F. App’x 32, 34 (2d Cir. 2007) (summary order) (quoting Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005)). “The Convention’s central operating feature is the return remedy.” Abbott v. Abbott, 560 U.S. 1, 9 (2010). That is, while a court adjudicating a petition under the Hague Convention may order a child returned to his or her country of habitual residence, it must leave decisions regarding custody arrangements to the courts of the country of habitual residence. See id. at 20. It follows that where there is no dispute as to a child’s country of habitual residence and the child has returned to that country, courts generally dismiss as moot petitions brought pursuant to the Hague Convention. See, e.g., Burton v. Oyekan, 95-CV-5849, 1996 WL 591285, at *1 (S.D.N.Y. Oct. 15, 1996); Allman v. Coyle, 319 F. Supp. 2d 540, 542-43 (E.D. Pa. 2004); In re Mahmoud, 96-CV-4165 (RJD), 1997 WL 43524, at *2 (E.D.N.Y. Jan. 24, 1997); Garcia v. Segovia, No. 17-CV-239, 2017 WL 6757647, at *2 (W.D.N.C. Nov. 22, 2017).2 That is the situation here. First, there is no dispute that Mexico is A.B.M.’s country of habitual residence. Pet. 6; ECF No. 64 (“Pet’r's Opp’n”), at 2-3; Resp’t's Mem. 1. And second, the record confirms that A.B.M. is in Mexico (and likely has been for nearly the entire duration of this case). Morales Lopez has submitted a sworn declaration attesting that A.B.M. is currently residing in Mexico and, with the exception of a three-day shopping trip to McAllen, Texas, near the Mexico border, in May 2023, “has been in Mexico continuously since March 12, 2023.” ECF No. 65-1 (“Resp’t's Aff.”),
2, 11-13. She has also submitted photographs of A.B.M. in Mexico with date, time, and location stamps, including one taken as recently as November 3, 2023. ECF No. 65-2. Significantly, Bartzik Rubio does not present any evidence (let alone admissible evidence) to the contrary — even though the Court granted him discovery on the question of mootness. See ECF Nos. 24, 32. At best, he points to an Amber Alert identifying A.B.M. as missing that was issued in Mexico on August 20, 2023. See Pet’r's Opp’n 64 & Ex. 2. But the Amber Alert (which is almost certainly inadmissible hearsay) was apparently deactivated within days, see Resp’t's Aff. 13; see also ECF No. 65-12, and it appears to have been generated in the first instance by Bartzik Rubio’s own unverified complaints to the Mexican police, see Resp’t's Aff.
