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Thursday, September 14, 2017

Hernandez v Ochoa, 2017 WL 3575487 (D. New Mexico, 2017[Mexico][Temporary Restraining Order])

          In Hernandez v Ochoa, 2017 WL 3575487 (D. New Mexico, 2017) the district court granted a temporary restraining order based on the facts alleged in the Verified Complaint which the Court accepted as true for the purposes of the motion only. The Court found that Plaintiff Luis Rene Quintana Hernandez (“Hernandez”) and Ochoa were married in Mexico on May 15, 2009.] On November 1, 2009, Ms. Ochoa gave birth to the Child in Mexico. Mr. Hernandez and Ms. Ochoa entered into a “Voluntary Agreement of Divorce” on November 13, 2015. A Final Decree was entered and is dated December 1, 2015. According to the Final Decree and the Voluntary Agreement of Divorce the parties agreed to shared custody of the Child in which the Mr. Hernandez has the Child every weekend from Friday at 1:00 p.m. to Sunday at 8:00 p.m. The Agreement further provides that “the weekly schedule” for visitations “shall be strictly followed.” On or about November 23, 2015, Ms. Ochoa informed Mr. Hernandez that she wanted to spend Thanksgiving with her daughters, from a previous marriage, in Albuquerque, New Mexico, and she wanted to take the Child with her. Ms. Ochoa informed Mr. Hernandez that she and the Child would be returning to Mexico on November 30, 2015. With this understanding, Mr. Hernandez submitted a Form I-94 (Arrival/Departure Record) for the Child to temporarily travel to the United States with a return date of November 30, 2015. On November 30, 2015, Mr. Hernandez filed a criminal complaint against Ms. Ochoa for her “unlawful removal from the country or abduction” of the Child. In the Complaint Mr. Hernandez states that on November 28, 2015, he went for visitation with his son as the parties had agreed in their Voluntary Agreement of Divorce entered on November 13, 2015.  Mr. Hernandez was informed by his bother-in-law that Ms. Ochoa had “decided not to return to the country [Mexico] and to prevent our son ... from returning to the country [Mexico]”.  Further, Mr. Hernandez averred that his brother-in-law informed him that Ms. Ochoa had “disposed of most of the home furniture, she sold it in order to leave the country, without intending to return and unlawfully abducting our son,”  Mr. Hernandez provided the police with the above-referenced facts under penalty of “imprisonment of six months to six years”. Hernandez avered that without his consent or agreement, Ochoa continues to wrongfully retain the Child in the United States—specifically, in Albuquerque, New Mexico. [Doc. 1 at 1, 2, 6 of 11]. He asks for an ex parte TRO prohibiting the removal of the Child from the jurisdiction of this Court pending a hearing the merits of the Verified Complaint.

          The district court observed that Rule 65(b)(1) of the Federal Rules of Civil Procedure provides that the Court may grant a temporary restraining order (TRO) without notice to the other side only when (1) “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 (2) “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” An ex parte TRO has a limited life: Rule 65(b)(2) provides that a TRO may not extend beyond 14 days, “unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Further, “[i]f the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character.” Rule 65(b)(3). Finally, a TRO must state the reasons why it issued, state its terms specifically, and describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required. Rule 65(d)(1). In order for a party to be entitled to a temporary restraining order or a preliminary injunction, that party must show “(1) he or she will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)) (alterations omitted).

          After considering the evidence in the record, the Court concluded it was sufficient to show that Hernandez was entitled to a temporary restraining order. The evidence presented for purposes of this TRO showed that the Child was a habitual resident of Mexico, at the time of his abduction; that the parties were in agreement that Hernandez had custodial rights under Mexican law, and that he had made a decision to have a meaningful role in the Child’s life. Thus, it appeared that at the time of the abduction, Hernandez had custody rights under Mexican law. Further, there was no evidence that Hernandez failed to exercise those custody rights or otherwise abandoned the Child. the evidence in the record showed that it was through an attempt to exercise those rights that Hernandez discovered that Ochoa had taken the Child to the United States, and that he notified Mexican authorities immediately. As it appeared that defendant will not suffer any costs and/or damages in the event the Court determines the defendant was wrongfully restrained (see Rule 65(c), no security was required. The Court therefore ordered, inter alia, that  Ms. Ochoa be prohibited from removing the Child from the jurisdiction of the Court pending a hearing on the merits of the Verified Complaint, and no person acting in concert or participating with Ms. Ochoa, shall take any action to remove the child from the jurisdiction of this Court pending a determination on the merits of Mr. Hernandez’s Verified Complaint.

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