Wednesday, November 12, 2014
Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.) [Mexico] [Federal & State Judicial Remedies]
In Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.) Petitioner commenced an action alleging that his wife, Respondent, Ayliem Orihuela Castillo, wrongfully removed their minor child, J.V.O., age three, from their residence in Mexico, and seeking return of the child. According to the Petition the Petitioner and Respondent married in Cuba on or about April 6, 2012. Immediately after the marriage, Petitioner began the process of obtaining permission for Respondent and J.V.O. to move to Mexico. Respondent and J.V.O. moved to Mexico to live with Petitioner together as a family on or about December 5, 2012. Both Petitioner and Respondent intended for the family to live together in Mexico permanently. Respondent sold her home in Cuba and requested that Petitioner file the appropriate papers for her to bring her other two children to also live in Mexico. Petitioner, Respondent, and J.V.O. lived together in Petitioner's family home until October 2013. On October 5, 2013, Respondent left Mexico with J.V.O. without warning, notice or permission from Petitioner. Respondent sent a text message to Petitioner indicating that she was on a plane to Cuba. She later sent another text message to Petitioner indicating that she was in Houston, Texas. Several days later, the parties began communicating by email. Eventually, Respondent provided a phone number and stated that she was living in Tampa, Florida, with her uncle.
Respondent would not provide Petitioner with the address of her residence in the United States. From January 2014 through September 2014, Petitioner had not seen, spoken to, or received substantive information regarding J.V.O. Petitioner was the Child's natural father. He was born in Mexico, lived in Mexico for his entire life, and was a Mexican citizen. Respondent was the Child's natural mother. Respondent was
born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she married Petitioner and established domicile in Mexico. Her current address was believed to be in Tampa, Florida, and law enforcement provided an address where the U.S. Marshals Service could serve her with process. Respondent had immediate and extended family in Cuba, including her parents and two minor children-one of whom lived with his father and the other lived with a grandparent. J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in the United States.
In light of the evidence in the Amended Verified Petition, it appeared to the court that Mexico was the likely habitual country of residence of J.V.O. The district court observed that ICARA authorizes a court to "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). Such relief is analogous to a temporary restraining order. Therefore, a petitioner must show that: 1. There is a substantial likelihood that the moving party will prevail on the merits; 2. The moving party will suffer irreparable injury if the injunction is not granted; 3. The threatened injury to the moving party outweighs the threatened harm the proposed injunction may cause the opposing party; and 4. The injunction, if issued, would not be adverse to the public interest. The district court found that based on the allegations in the Amended Verified Petition all of these elements were present and that a provisional remedy was appropriate.
The court directed that the United States Marshals to serve the Respondent, with the Petition, Summons, and Order; seize and impound any and all travel documents of both the Respondent and J.V.O, including but not limited to any and all passports, birth certificates, travel visas, Green Cards, social security cards or similar documents that may be used to secure duplicate passports; and deliver such travel documents to the Clerk of the Court. In the alternative to delivering the travel documents to the U.S. Marshal the Respondent could appear before the Court with her travel documents to show cause why the Court should not seize and impound the travel documents. The court directed that Respondent may not remove J.V.O., nor allow any other person to remove J.V.O. from the jurisdiction of the Middle District of Florida pending a Final Evidentiary Hearing on Petitioner's Petition for Return of J.V.O. to Mexico or until further order of the Court. The court set the matter down for a hearing and directed that Petitioner may appear at the Final Evidentiary Hearing via Contemporaneous Transmission from Remote Location.