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Thursday, August 15, 2013

Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) [Canada] [Federal & State Judicial Remedies] [Temporary Restraining Order] [Delivery of Passport to Court]

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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