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Thursday, November 6, 2014

Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) [Mexico] [Provisional Remedies] [Temporary Restraining Order] [Judicial Notice]

         In Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) Petitioner Father sought  the issuance of a restraining order preventing Respondent  Claudia Garcia Hernandez (Mother) from leaving the jurisdiction along with a Rule to Show Cause requiring Mother to appear at a hearing to show cause why the minor children should  not be returned to Mexico;  the issuance of a warrant for the physical custody of the  children; and 3) an order scheduling an expedited hearing on the merits of Father's Verified Petition. In his Motion to Seal, Petitioner asked the court to seal any warrant for  physical custody of the minor children issued. I n his Motion to take Judicial Notice of Mexican Law he requested the court take judicial notice of Mexican law as reflected in Petitioner's expert affidavit and Article 15 Declaration made by Maria Cristina Oropeza Zorrilla, Director of  Family Law for the Mexican Central Authority. 

         The evidence presented by Father at the ex parte hearing indicated that on June 17, 2013, Respondent Claudia Garcia Hernandez, who was the mother of F.C.G., a ten-year old Mexican national, and A.C.G., a two-year old Mexican national wrongfully removed the Children, against Father's express wishes, from their familial home in Mexico and brought the children into the United States illegally and without prior notice. The  evidence presented by Father showed that he was listed on the Children's birth certificates, and had sufficient parental custody rights under the Hague Convention such that Mother's removal of the Children from Mexico without his consent wrongfully deprived him of  his parental rights that he was exercising just prior to the removal. Father indicated to the  Court that Mother has, in violation of his expressed direction to the contrary, brought the  Children into the United States illegally, knowing that Father instead wished for the family to stay in Mexico. After their alleged abduction, Father has alleged that it took more than a year to locate the Children who were being hidden in Florence, South Carolina by Mother, even with the aid of the State Department and law enforcement. Father has alleged that Mother is in Florence, South Carolina with the Children's grandmother, Lorenza Hernandez Perez, and their aunt,  Andrea Garcia Hernandez.

In light of Father's contentions in the Verified Petition, the Court  determined that it was necessary to hold a preliminary injunction hearing to determine whether the temporary  restraining order should remain in effect pending a full hearing on the merits. The court declined to consolidate the preliminary injunction hearing into the final merits hearing as  requested by the Father. The Court anticipated that the Mother would require a reasonable amount of time to prepare for the hearing and retain counsel if desired.

        The Court observed that to further the  intent of the Hague Convention, courts are called on to preserve the status quo-the return of the child to his home country for further proceedings. See  Miller v. Miller, 240 F.3d 392, 398 (4th Cir.2001). To accomplish the goal of maintaining the status quo, the Court is empowered to take appropriate measures "to prevent ... prejudice to interested  parties by taking or causing to be taken provisional measures." Hague Convention, art. 7(b). These "provisional measures" are available to the court exercising jurisdiction over the action  just as if it were the appropriate court under State law- the ICARA requires the court  exercising jurisdiction to ensure that the applicable requirements of State law are satisfied. 22  U.S.C. §9004(b). Once those requirements are met, the court is permitted to implement all necessary procedures "to prevent the child's further removal or concealment before the final disposition of the petition."Id. §9004(a).   Federal courts across the country have used the authority granted to them by § 9004, formerly cited as 42 U.S.C. § 11604, to take provisional measures to ensure that abducted  children are not removed from their jurisdiction prior to completion of Hague proceedings. Father's request for relief was heard on an ex parte basis under Federal Rule of Civil Procedure 65(b)(1). Based on Father's allegations and the findings the Court found that relief without notice to Mother was necessary to avoid immediate and irreparable injury, loss, and/or damage if Mother were to be given notice of the proceedings prior to the Order.   The Court found that Father's request for provisional measures authorized by 22 U.S.C.§ 9004  are "analogous to a temporary restraining order. A plaintiff seeking a temporary restraining order or preliminary injunction must establish all four of the following elements: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of temporary or preliminary relief; 3) the balance of equities tips in his favor; and 4) an injunction or restraining order is in the public interest.  Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374, 555 U.S. 7, 20 (2008).  A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim.  Similarly, a plaintiff must make a clear showing that he is likely to be irreparably harmed absent injunctive relief.  Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. 

         After analyzing these factors the Court found that provisional measures were authorized and necessary in this case.   The Court found that Petitioner Father, at this stage in the proceedings and based on the Verified Petition and exhibits, had clearly demonstrated that he was likely to be successful on the merits. Based on the evidence, the Court found that ex parte emergency relief was necessary to prevent irreparable injury. The court observed that allowing the Mother to flee with the  Children was contrary to the very purpose of the Hague Convention and ICARA, and would result in irreparable harm. See  In re McCullough, 4 F.Supp.2d at 416.  Given that Mother had already allegedly wrongfully removed the Children from Mexico, there existed a risk that Mother may leave this jurisdiction with the Children. Father had, therefore, made a clear showing of the  likelihood of irreparable harm if temporary relief was not granted. The Court found hat any threatened harm to Mother was minimal as compared to the  probability of irreparable harm to Father. Finally, the court found that, the public policy is not hindered, but is instead furthered, by the ordering of these provisional measures.    Therefore, the Court found that the necessary elements of Rule 65, as articulated in Winter,  had been met, and the Court granted Father's request for a Temporary Restraining Order  prohibiting the removal of the Children from the Court's jurisdiction.

Petitioner asked the Court to issue a warrant for physical custody pursuant to S.C.Code Ann. §63-15-370, to have his minor children placed in protective custody with the Florence County Department of  Social Services ("DSS"). However, before ordering that a child be taken from someone with physical custody of the child, the federal courts must ensure that the requirements of state law are satisfied. 22 U.S.C. § 9004(b).  South Carolina Code  63-15-370, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act, provides, in part:  (A) Upon the filing of a petition seeking enforcement of a child custody  determination, the petitioner may file a verified application for the issuance  of a warrant to take physical custody of the child if the child is immediately  likely to suffer serious physical harm or be removed from this State. According to the Verified Petition, the Mother had family in Florence County, the  Grandmother and Aunt of the minor children, who reportedly owned a local business. Petitioner  alleged the Children had been physically located at addresses in Florence and Darlington, South Carolina beginning some period following their alleged abduction on June 17, 2013. More than one year had elapsed since the minor children were removed from Mexico and it appeared the Mother and children may have been residing in Florence County for at least one year. As a result, it was unclear whether the minor children may  be settled in their new environment as  contemplated by Article 12 of the Hague Convention. The Court had reservations as to the propriety of issuing a physical custody warrant for the Children at this juncture and denied Petitioner's request to issue a warrant under the  Uniform Child Custody Jurisdiction and Enforcement Act, S.C.Code Ann.§ 63-15-370.

The district court observed that the Hague Convention allows courts to "take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of law." Hague Convention, art. 14; 22 U.S.C.§s 9005. Courts around the country have used this authority to take judicial notice of foreign States' laws, especially when determining whether the petitioning parent has "rights of custody" as  required by the Hague Convention. For that reason, the Court granted petitioner's Motion to  take Judicial Notice of Mexican Law for purposes of granting the Temporary Restraining Order. The Court declined to issue the custody warrant. Therefore, Petitioner's motion to seal was denied as moot.

           In its order the court ordered the mother to bring the Children and any and 
all passports, identification, and travel documents for the Children to the hearing and that if she did not appear as directed or if she removed the children from the jursdiction of the court a warrent for her arrest shall issue; prohibited her  from removing the Children from the  jurisdiction of the Court pending the preliminary injunction hearing on the Verified Petition, and directed that no person acting in concert or participating with Respondent Mother (including the Children's grandmother, Lorenza Hernandez Perez, and their aunt, Andrea Garcia Hernandez) shall take any action to remove the Children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition.

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