In
Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) Petitioner Elaine Mary
Murphy's Ex Parte filed an Application for a Temporary Restraining Order
enjoining Respondent William Milligan Sloan from removing their minor child
from the jurisdiction of this Court pursuant to the Hague Convention on the
Civil Aspects of International Child. The district court granted the
application. According to the Petitioner's Verified Complaint and Petition for
Return. Petitioner, a citizen of Ireland, sought the return of her
eight-year-old daughter, E.. Petitioner and Respondent married and lived
together in California in 2000. Their child, E., was born in 2005, during the
marriage. In April 2010, Petitioner moved to Ireland with E., with Respondent's
consent. Petitioner and E returned to the United States twice during the summer
of 2010 before returning to Ireland so E. could start school in Kinsale, County
Cork, Ireland. Respondent resided, and
continued to reside, in Marin County, California. He filed for divorce in Marin
County Superior Court on October 25, 2010, That action was pending. E attended
school in Ireland for the 2010, 2011, and 2012 scholastic years. According to Petitioner, E. spoke Gaelic, and
considered Ireland her home. E. had previously visited Respondent in the United
States in 2010, 2011, 2012 and Easter 2013. On June 12, 2013, Respondent
arrived in Kinsale to pick up E. for a summer vacation in the United States. On
June 16, 2013, E. left Kinsale, County Cork, Ireland with Respondent for a
summer visit to the United States. On June 21, 2013, over the phone from the
United States, Respondent revealed to Petitioner that he did not intend to return
E. to Ireland.
The district court observed that a
court exercising jurisdiction under ICARA “may take or cause to be taken
measures under Federal or State law, as appropriate, to protect the well-being
of the child involved or to prevent the child's further removal or concealment
before the final disposition of the petition.” 42 U.S.C. §
11604(a). That authority extends to issuing an ex parte temporary
restraining order where the requirements of Federal Rule of
Civil Procedure 65(b) are satisfied. Under Rule 65(b),
a party seeking a temporary restraining order 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 (2008). The court found that Petitioner satisfied each
element. Petitioner adequately
established a likelihood of success on the merits by making a prima facie
showing that E. is under sixteen years of age, that her habitual residence is
in Ireland, that E. was removed from Ireland in breach of Petitioner's
custodial rights, which rights Petitioner would have exercised but for the
removal.
The
Court found that there was no reasonable likelihood of harm to Respondent from
being wrongfully enjoined, and therefore ordered that Petitioner was not
required to give security pursuant to Federal Rule of
Civil Procedure 65(c). It directed Respondent to show cause why he
should not be prohibited from removing the child from the Court's jurisdiction
until the proceeding was concluded; to show cause why the relief requested in
the Verified Complaint and Petition should not be granted and directed him to
produce E.'s passports and any other identification and/or travel documents and
to deposit them with the Court for safekeeping until the proceeding was
concluded.
