Thursday, August 15, 2013
Wood v Wood, 2013 WL 1907492, (E.D. Washington) [United Kingdom] [Federal & State Judicial Remedies ][Temporary Restraining Order] [Deposit Passport with Court]
In Wood v Wood, 2013 WL 1907492, (E.D. Washington) Petitioner filed an Ex Parte Request for Expedited Consideration of Verified Petition for Return of Child to the United Kingdom and Issuance of Show Cause Order (ECF No. 3). He sought the return of his minor child, LPBW, to the child’s home country of the United Kingdom. He alleged that LPBW has been wrongfully retained in the United States by his mother, Respondent Melissa Renee Wood ("Respondent"), and was currently residing with Respondent in Moxee, Washington. Petitioner requested an order (1) temporarily restraining Respondent from removing LPBW from this Court’s jurisdiction; (2) requiring Respondent to deposit LPBW’s passport and other travel documents with the Court; and (3) directing Respondent to appear for a show cause hearing. Fearing that Respondent would attempt to remove the child from the Eastern District of Washington if given advance notice of these proceedings, Petitioner filed the motion ex parte.
The District Court observed that 42 U.S.C. § 11604(a) extends the Courts authority to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D. Iowa 2003. In taking any preventative measures pursuant to § 1 1604(a), however, a court must ensure that "the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).
Petitioner requested an order barring respondent from removing LPBW from this Court’s jurisdiction pending full adjudication of the Petition. Given that Petitioner filed his motion without serving a copy on Respondent, the Court construed this request as a motion for an ex parte temporary restraining order ("TRO"). Under Rule 65(b), a party seeking a TRO must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should remain in force in the form of a preliminary injunction.
The Court found that the issuance of a TRO was appropriate. Petitioner established a prima facie case of wrongful retention under the Hague Convention by alleging that Respondent was holding LPBW, a child under sixteen years of age whose country of habitual residence is the United Kingdom, in the United States without his permission and in violation of his rights of custody under the Law of England and Wales. Petitioner also established to the Court’s satisfaction that Respondent and LPBW were currently residing within the Eastern District of Washington. Accordingly, Petitioner established a sufficiently high likelihood of success on the merits. Petitioner also established a sufficiently high likelihood of irreparable injury if the requested relief was not granted. According to the Petition, Respondent had taken LPBW "on the road" through at least four different states in an effort to conceal the child’s whereabouts from Petitioner. In light of these allegations, there was reason to believe that Respondent may remove LPBW from this Court’s jurisdiction upon learning of these proceedings if not expressly prohibited from doing so. If that occurred, Petitioner would likely experience great difficulty in locating the child and pursuing the child’s safe return to the United Kingdom. The Court found that injunctive relief was necessary to prevent this and other potential injuries from occurring. For these same reasons, the Court found that issuance of the Order without notice to Respondent was appropriate under Rule 65(b)(2). Prohibiting Respondent from removing LPBW from the Eastern District of Washington until she could be heard on the matter was a minimally burdensome condition. Indeed, given that Respondent and LPBW appeared to have settled in Moxee (at least for the time being), there was no reason to believe that either Respondent or the child will be burdened at all. Conversely, Petitioner faced a substantial hardship if the requested relief was not granted. As noted above, Petitioner’s ability to obtain effective relief under the Hague Convention would be seriously jeopardized if Respondent were to remove the child from this Court’s jurisdiction. Finally, the Court found that an order barring Respondent from removing LPBW from the jurisdiction would advance the public interest. In implementing the Convention through ICARA, the United States Congress found, inter alia, that "the international abduction ... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. § 11601(a)(1), (2). Granting the requested relief would, at least temporarily, prevent Respondent from further profiting from her alleged wrongful retention of LPBW in the United States. Accordingly, the Court concluded that Petitioner was entitled to an order temporarily restraining Respondent from removing LPBW from the Court’s jurisdiction; it prohibited her from directly or indirectly removing the minor child, LPBW, born in 2007, from the Eastern District of Washington; directed that Petitioner shall not be required to give security under Rule 65(c); directed Respondent to appear before the court to show cause why she should not be prohibited from removing the LPBW from the Court’s jurisdiction until the proceeding was concluded; directed Respondent to produce LPBW’s passport and any other identification and/or travel documents at the hearing and to deposit them with the Court for safekeeping until the proceeding was concluded; and directed Petitioner to arrange for the Order, along with a copy of the Verified Petition and all attached documents, to be personally served upon Respondent at the earliest possible time, and file proof of service prior to the hearing.