In Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) Petitioner alleged that
he resided in Whistler, British Columbia, Canada where, until September 2012, he
lived with Respondent and their three children. On March 15, 2013, Petitioner
filed his Verified Complaint asserting a cause of action for Wrongful Retention
under The Hague Convention on International Child Abduction. In the Petition,
Petitioner sought return of the children to Canada to allow the courts of the
children's "habitual residence" to determine any custody issues. Petitioner
filed a motion seeking an ex parte Temporary Restraining Order to ensure that
the minor children, remained in Nevada until the Court can resolve the merits of
this matter.
The Court observed that Federal Rule of Civil Procedure 65 governs
preliminary injunctions and temporary restraining orders, and requires that a
motion for temporary restraining order include "specific facts in an affidavit
or a verified complaint [that] clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before the adverse party can
be heard in opposition," as well as written certification from the movant's
attorney stating "any efforts made to give notice and the reasons why it should
not be required."Fed.R.Civ.P. 65(b).Temporary restraining orders are governed by
the same standard applicable to preliminary injunctions. Like a preliminary
injunction, the Court may issue a temporary restraining order if a plaintiff
establishes: (1) likelihood of success on the merits; (2) likelihood of
irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in the public
interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)
."Injunctive relief [is] an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief." Id. at 22.
The district court concluded that Plaintiff established each of the prongs of
the TRO analysisThe first prong requires Petitioner to establish that the
children were removed or retained away from the country of their habitual
residence. See Hague Convention, art. 3(a). The second prong of Petitioner's
Wrongful Retention claim requires that Petitioner prove that Respondent's
retention of the children in the United States was in breach of the custody
rights of the Petitioner, as provided by Canadian law. Hague Convention, art.
3(a). Finally, Petitioner must establish that, at the time the children were
removed or retained, Petitioner was actually exercising his rights of custody.
Hague Convention, art. 3(b). Petitioner's Verified Complaint adequately
demonstrates that he was exercising his rights of custody at the time Respondent
brought the children to the United States and that Petitioner would have
continued to exercise his rights of custody but for Respondent's allegedly
wrongful retention of the children in the United States. Given the risk that
Respondent could further conceal the location of the children, the Court found
that Petitioner would likely be irreparably harmed in the absence of the
requested relief to maintain the status quo.
The Court concluded that the risk of Respondent secreting away the children
before the resolution of the Petition, outweighed any injury to the Respondent
or the children that may result from ordering them to stay in the District.
First, the Order merely maintained the status quo by ordering that Respondent
and the children remain in the District during the pendency of this action.
Second, the Verified Complaint stated that Respondent's parents reside in the
District. Thus, this Order would not impose a hardship on Respondent.
Accordingly, the balance of equities tipped in favor of Petitioner and
supported the issuance of the requested temporary restraining order. "The public
interest analysis for the issuance of [injunctive relief] requires [district
courts] to consider whether there exists some critical public interest that
would be injured by the grant of preliminary relief." ICARA expressly authorizes
a court to "take or cause to be taken measures under Federal or State law, as
appropriate, ... to prevent the child[ren]'s further removal or concealment
before the final disposition of the petition." 42 U.S.C. § 11604(a).
Accordingly, in this case, the Court found no such public interest that would be
injured by the issuance of such injunctive relief.
The Court also directed Respondent to deliver to the United States Marshal,
for safekeeping, any passports for TC, KC, and AC that are were Respondent's
possession, custody, or control, and shall further notify the United States
Marshal if Respondent knows of any person having possession of such a passport.
The Court directed that the summons and other papers be served upon the
Respondent.
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