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Friday, May 1, 2015

Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.)

[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]

In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte  Temporary Restraining Order

According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of  whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child.  Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006.  In May 2010, Petitioner and Respondent agreed that Petitioner would return to  Mexico with L.D.M.  On May 26, 2010 Respondent signed a notarized statement  acknowledging Petitioner's return to Mexico with L.D.M.  In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family  and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or  sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that  L.D.M. could begin his next school term. Respondent refused to return L.D.M.  to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not  lawfully present in the United States. Petitioner filed the petition on April 16, 2015.

    The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of  injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "that he is likely  to succeed on the merits, that he is likely to suffer irreparable harm in the absence of  preliminary relief, that the balance of equities tips in his favor, and that an injunction is  in the public interest." 

The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support  for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return  L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her  Petition under the Hague Convention.

The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely.  Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies." 
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner  alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that 
an Order to appear in federal court for a full hearing on Plaintiff's motion for a 
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with 
L.D.M.  If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner 
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague 
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary  restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification.  Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.

The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain  custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague  Convention and the ICARA were the only legal recourse available to her under the  present circumstances, where her son had been wrongfully retained in Statesboro,  Georgia in violation of her custody rights. If Respondent were to be notified of  Petitioner's Petition without a legally enforceable order enjoining him from removing  L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of  her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of  the injunction would not greatly inhibit his rights or ability to travel, as the requested  injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two  weeks. The requested injunction would present little, if  any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte  temporary restraining order.

The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and  ICARA.  The Court concluded that the public interest in granting a temporary restraining  order favored Petitioner.

The court granted Petitioner's request for a temporary restraining 
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name.  It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.

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