Search This Blog

Monday, April 13, 2015

Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio)[United Kingdom] [Temporary Restraining Order]

In Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio) the Petition for return of the child sought, as provisional remedies pursuant to 22 U.S.C. §9004, an immediate Order prohibiting the removal of the child from the jurisdiction of  the Court and requiring Respondent to post a bond in the amount of $20,000, to remain in effect until  further order of the court. The Court construed this portion of the Petition as a motion for a temporary restraining order.

Based upon the filed papers it found that Petitioner Nathan Lawrence and Respondent Natalie J. Lewis were the biological parents of minor child JRM. JRM was born in 2006, and wasnow eight years old. Petitioner was designated as JRM's father on her birth certificate. As such, pursuant to law, Petitioner has parental responsibility of the child and possesses "all rights, duties, powers, responsibility and authority" given to a parent under the law. (United Kingdom Children Act of 1989).   Prior to March 24, 2014, JRM resided in Birmingham, West Midlands, England, United Kingdom for eight years. Pursuant to a Prohibited Steps Order entered by the Birmingham County Court in 2010, Respondent was prohibited from removing JRM from the  United Kingdom "without the written consent of every person with parental responsibility for the children or leave of the court." Pursuant to a Contact Order, Petitioner was to have weekly telephone contact with JRM and custody on alternate weekends. Petitioner last saw JRM on March 24, 2014 when, following one of his weekends with JRM, he took JRM to school.   Upon learning that Respondent's house had been abandoned, Petitioner contacted the local police, who, in turn, contacted authorities in the United States.  Authorities located Respondent in Ohio and took pictures of Respondent and JRM as part of a "safe and well check." Petitioner believed that Respondent and JRM currently resided in Peebles, Ohio.  The United Kingdom High Court of Justice ("High Court")  issued at least three Orders requiring Respondent to return JRM to the United Kingdom. On December 10, 2014, At Petitioner's request, the High Court entered a publicity order on December 10, 2014. Pursuant to that order, Petitioner discussed the removal of JRM with the British media.  Respondent also participated in an interview with the media, in which she indicated that she was in Cincinnati and that her husband is American. On September 25, 2014, the High Court ordered that JRM be designated  ward of the court and that Respondent provide JRM's whereabouts in the   United States and return JRM to the United Kingdom by October 10, 2014. On October 10, 2014, the High Court entered a second order on requiring the immediate return of JRM.  On March 16, 2015, the High Court held Respondent in contempt for failing to adhere to its previous orders and again ordered Respondent to  return JRM to the United Kingdom. 

     The Court evaluated Petitioner's request for provisional relief pursuant to Federal Rule of Civil Procedure 65, which authorizes the Court to grant a temporary restraining order or a preliminary injunction. In determining whether to grant injunctive relief, the Court considers four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; whether the moving party will suffer irreparable harm if the injunction is not issued; whether the issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by issuing the injunction.  Overstreet, 305 F.3d at 573. The Court considered these same four factors in determining whether to issue a temporary restraining order or a preliminary injunction.    The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:  (A) specific facts in an affidavit or a verified complaint clearly show that  immediate and irreparable injury, loss, or damage will result to the movant  before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice  and the reasons  why it should not be required. Fed.R.Civ.P. 65(b)(1).
The Court found that petitioner made the requisite showing that JRM was a habitual resident of the United Kingdom before the removal; that the removal breached his rights to custody of JRM, and that he had been exercising his custodial rights at the time of the removal. JRM  resided in the United Kingdom for eight years prior to April 24, 2014. Respondent was designated as JRM's father on her birth certificate and, therefore, has parental  rights under the Children's Act of 1989. Respondent had been  exercising his custodial rights up until JRM's removal. For these reasons, the Court found that Petitioner had shown a sufficient likelihood of  success on the merits.

Based on the facts contained in the Petition and the supporting documentation, Respondent  retained the child in the United States for close to a year,  despite Petitioner's attempts to exercise his custodial rights and garner relief through the High Court. This suggested to the Court that Respondent could seek to remove JRM from this jurisdiction, or further conceal her whereabouts. Such action would defeat the purpose of the  Hague Convention and frustrate the effort of this Court in resolving the ultimate disposition of the Petition.  Were Respondent to flee the jurisdiction and conceal JRM prior to a hearing  before the Court, Petitioner would suffer irreparable harm.This order, if granted, was limited and temporary. Accordingly, the balance of the equities weighed in favor of Petitioner. The court found that the public interest was served by granting the provisional relief sought. Granting the provisional relief sought, as a means to ensure that  the matter was adjudicated on its merits, is the public interest.   In sum, the four factors discussed above weighed in favor of granting a temporary restraining order that prohibited the removal of JRM from the Southern District of Ohio, pending a final  evidentiary hearing on the Petition or until further order of the Court.

   Because Petitioner sought provisional relief without notice to Respondent, the request  met additional requirements. The Court found that Petitioner had set forth specific facts that clearly showed that immediate and irreparable injury, loss, or damage would result to the movant before the adverse party could be heard in opposition. In light of Respondent's failure to comply with orders issued by the High Court, including an order that Respondent provide JRM's whereabouts in the United States, the risk that Respondent would attempt to evade an order from the Court by removing her from the Southern District of Ohio was likely. This would undoubtedly cause irreparable injury to Petitioner. For these same reasons, notice would defeat the purpose of the provisional relief sought.

   Rule 65(c) of the Federal Rules of Civil Procedure requires that the movant post a security bond in the event that the Court grants a temporary restraining order. The Sixth Circuit has repeatedly held that District Courts possess discretion to issue such injunctive relief without the positing of a bond. The Court exercised its discretion in favor of foregoing the posting of a bond by Petitioner, and denied Petitioners request for an order directing the Respondent to post a bond.

   For the foregoing reasons the court directed that  Respondent Natalie J. Lewis shall not remove JRM, nor allow any other person to remove JRM, from the jurisdiction of the Southern District of Ohio pending a final evidentiary hearing on the Petition or further order of the Court. This Temporary Restraining Order expired fourteen (14) days from the entry of the Order.

No comments:

Post a Comment