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Tuesday, August 9, 2016

Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) [France] [Federal & State Judicial Remedies] [Temporary Restraining Order Granted ] [Winter Rule].

In Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) Petitioner (Father) alleged that Respondent wrongfully retained the parties’ son “C.R.S.”, born in the United States in 2004, from his habitual residence in France, and that such wrongful retention occurred on or about June 30, 2016. The mother and son purchased round-trip tickets from France to North Carolina, departing June 28, 2016 and returning August 24, 2016; the child was attending sleepaway camp in the United States, where he had been since July 2nd, 2016 and he was scheduled to return  August 3rd, and would resume school in France. Petitioner  alleged that on July 19, 2016, he was unexpectedly served with Respondent’s North Carolina Complaint for Divorce and Custody, which Petitioner read as Respondent’s unequivocal intent to remain in North Carolina with the child. The Court observed that a TRO which is procedurally governed by Rule 65(b), Federal Rules of Civil Procedure, which provides as follows: 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. In considering the issuance of TRO, the court also considered current case law governing the issuance of such relief, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)]. In keeping with Winter, the Fourth Circuit found that first, a plaintiff must now show that he will “likely succeed on the merits” regardless of whether the balance of hardships weighs in his favor.  Also, the likelihood of success on the merits requires more than simply showing that “grave or serious questions are presented.”  Second, the plaintiff must make a clear showing that he will likely be irreparably harmed absent preliminary relief. That the plaintiff’s harm might simply outweigh the defendant’s harm is no longer sufficient.  The showing of irreparable injury is mandatory even if the plaintiff has already demonstrated a strong showing on the probability of success on the merits. Third, the Court is admonished to give “particular regard” to the “public consequences” of any relief granted. Finally, there no longer exists any flexible interplay between the factors, because all four elements of the test must be satisfied.  White v. Miller, 2011 WL 1168045, 2 (D.S.C. Mar. 7, 2011).
The court concluded that a TRO would issue prohibiting Respondent or anyone acting on her behalf from leaving the district with the child pending disposition of the  Hague Petition.