Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) [Colombia] [Federal & State Judicial Remedies] [Temporary Restraining Order]

In Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) Petitioner Francelly Sanchez Londono filed a Verified Emergency Petition for the Return of Child and Warrant of Arrest in Lieu of Writ of Habeas Corpus, pursuant to 42 U.S.C. § 11601. The petition was accompanied by an Emergency Motion for Relief and an Application to Proceed in District Court Without Prepaying Fees or Costs. The petition was brought pursuant to the Hague Convention and sought, among other things, to compel respondent Nelson Gonzalez to appear in court to show cause why the child EG should not be returned to Colombia. The petition alleged that EG was brought from Colombia to the United States in May 2011 by her father, Gonzalez, and had been retained here without petitioner’s consent.

Petitioner filed an Emergency Petition for the Return of Child and an Emergency Motion for Relief. The court denied the motion for poor person relief. However, it observed that upon appropriate motion, the Court has the authority to prevent a child’s concealment or removal from the District until such a petition is ruled upon. See 42 U.S.C. § 11604(a); Fed.R.Civ.P. 65. ICARA expressly authorizes a court to "take or cause to be taken measures under federal or state law, as appropriate, ... to prevent the child’s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a).

Given the representations made to the Court by petitioner, and the very serious irreparable harm that was likely to result both to the child and to petitioner in the event the child was wrongly removed from this jurisdiction, a temporary restraining order was justified to preserve the status quo pending a hearing. For the purposes of Fed.R.Civ.P. 65(b), the Court found that petitioner had made a sufficient showing that, without an injunction, she may sustain immediate and irreparable injury before there was an opportunity for a hearing. The record did not suggest any comparable irreparable harm to respondent that would result from the granting of this temporary injunction. The balance of hardships tiped in favor of petitioner. Based on the present record, the Court was also convinced that it was necessary to issue an injunction without prior notice to respondent. Petitioner’s submissions indicated a risk that, should notice be provided, the child might be concealed or taken from this jurisdiction before an injunction could be served. The Court did not require petitioner to post a bond as a condition of obtaining the injunction at this trial. It directed that a summons be served on the respondent.