            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.
           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.


                                        -2-
            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. §§ 11601-11610.1            The petition

alleged that Rivera wrongfully removed L.N.R. from her habitual

residence, the United Kingdom.



      1
       Patrick did not petition for the return of Rivera's other
child because he is not the child's biological father.

                                     -3-
            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.


                                        -4-
            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

                                     -5-
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

                                    -6-
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).


                                   -7-
           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).2    On its face, this

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



       2
       The National Archives of the United Kingdom has made these
statutes available at http://www.legislation.gov.uk/.

                                 -8-
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


     3
       United Kingdom law provides other means for a father to
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

                                   -9-
          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.

                                -10-
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,


                                       -11-
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.


                               -12-
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


     4
       In her reply brief, Rivera cites a provision of Puerto Rico
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.

                                -13-
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


                                 -14-
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


                                     -15-
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


                                  -16-
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.




                                 -17-
                         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.5     Mandate shall issue

forthwith.




     5
       Presumably, the trial will address the issues raised in
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.

                              -18-
