Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) [Costa Rica] [Rights of Custody] [Motion for TRO denied]

In Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) Petitioner brought the action on September 14, 2017, requesting that the court order the return of his three-year old biological son J.S.M.P. to his alleged “habitual residence” of San Antonio de Coronado, Costa Rica. In addition, Petitioner requested: (1) “for the well-being of the child, that he be given immediate access to his child, pending further hearing in this Court”; (2) that the court issue an order immediately prohibiting the removal of J.S.M.P. from the jurisdiction and requiring the turnover of the child’s travel documents; and (3) that the court set the matter for an expedited hearing.  the district court denied Petitioner’s motion for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing.


In support of his Petition for Return of the Child to Petitioner), Petitioner submitted a copy of the Convention; a portion of the Spanish version of Costa Rica’s Family Code or Código de Familia; an unsworn affidavit by Petitioner, which constitutes no evidence; correspondence dated January 6, 2017 from the Patronato Nacional De La Infancia; and a “Formulario de denuncia” or “denunciation form” dated September 6, 2016, that Petitioner filed with the Patronato Nacional De La Infancia in Costa Rica. 

Petitioner alleged that Respondent, the biological mother of J.S.M.P, removed the child to the United States without Petitioner’s consent. It was apparent from the documents relied on by him they are not married. The parties’ pleadings and the documentation submitted by Petitioner also show that Petitioner, Respondent, and J.S.M.P. were all born in Honduras; that Petitioner, Respondent, and J.S.M.P. were residing in Costa Rica immediately before J.S.M.P.’s removal; that Petitioner’s country of habitual residence was Costa Rica; and Respondent’s country of habitual residence was the United States. Petitioner alleged that Respondent wrongfully removed the child without his consent from Costa Rica to the United States on February 27, 2016. Petitioner alleges that Respondent has continued to wrongfully retain the child in the United States, and he believes the child is presently living with his mother in Dallas, Texas, at his maternal grandmother’s residence. Petitioner contended that he had rights of custody under Costa Rican law (Articles 141, 151, and 157 of Costa Rica’s Código de Familia or Family Code); that he was exercising those custody rights before the child was wrongfully removed; and that return of the child to Costa Rica is required under Articles Three and Five of the Convention. On January 2, 2018, Respondent filed her pro se Answer to the Petition, denying Petitioner’s allegations and contending that this action is baseless and frivolous:

On February 13, 2018, Petitioner moved for a temporary restraining order (“TRO”). In his motion for a TRO, Petitioner requests that the court prohibit Respondent, and others acting on her behalf, from removing J.S.M.P. from the court’s jurisdiction until after a determination has been made regarding the merits of his Petition.  The district court observed that a court may grant such relief only when the movant establishes that: (1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury [to the movant] outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993.. Because a TRO is considered an “extraordinary and drastic remedy,” it is not granted routinely, “but only when the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

  The court determined that Petitioner had not established that all requirements for a TRO had been met.


Regarding the first requirement, whether there is a substantial likelihood that the movant will prevail on the merits, the court determined that there was no evidence to support Petitioner’s conclusory allegations that: (1) J.S.M.P.’s habitual residence before removal to the United States was Costa Rica; (2) Petitioner has custody rights under Costa Rican law; and (3) Petitioner was exercising those rights before J.S.M.P.’s removal to the United States. The conclusory statement in the Petition and Petitioner’s affidavit that J.S.M.P. has lived with Petitioner in Costa Rica since his birth until his removal were insufficient to establish that Petitioner and Respondent had a shared intent or settled purpose to make Costa Rica J.S.M.P.’s habitual residence. Larbie, 690 F.3d at 310. First, this statement conflicted with another statement in Petitioner’s affidavit that J.S.M.P. was born in Honduras. If the child was born in Honduras, he could have lived his entire life in Costa Rica, and Petitioner does not specify how long J.S.M.P. has resided in Costa Rica. Thus, at most, this statement by Petitioner indicatesdonly that, for some unspecified period of time, J.S.M.P. lived with Petitioner in Costa Rica, before the child was removed by his mother to the United States. Moreover, that J.S.M.P. may have lived for a length of time in Costa Rica with Petitioner must be viewed in light of other facts. Specifically, as noted, the parties’ allegations and the documentation submitted by Petitioner indicate that Petitioner, Respondent, and J.S.M.P. were all born in Honduras and lived in Honduras for a time before they moved to Costa Rica; Respondent has immediate family in Dallas, Texas; and Petitioner acknowledges that Respondent’s country of habitual residence is the United States. Taken together, these facts did not support a finding that J.S.M.P.’s habitual residence was Costa Rica at the time of his removal to the United States.

Further, Petitioner did not establish that J.S.M.P.’s removal or retention breached Petitioner’s custody rights under Costa Rican law. Petitioner alleged in his Petition and affidavit that Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody and offers the following English translation of Convention Articles 141, 151, and 157: Article 141: The rights and obligations inherent to parental authority cannot be renounced. Neither can they be modified by agreement of the parties as they relate to the custody, upbringing, and education of the children, except for the provisions for separation and divorce by mutual consent. Article 151: The father and mother exercise parental authority over the children with equal rights and duties in the marriage relationship. In the event of a disagreement, at the request of either parent, the Court shall make the decision, even without the formalities of process and without the need for the parties’ hiring lawyers. The Court must decide based on the child’s interest.... Article 157: The provisions of Article 151 shall apply when the mother of a child born out of marriage exercised parental authority together with the father. 

Petitioner offered no explanation as to why he believed Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody under Costa Rican law. Article 141 appears in Chapter I of the Costa Rican Family Code includes general rules of disposition applicable to the rights and obligations conferred by parenthood. Código de Familia [CDF], art. 141 (Costa Rica). Article 151 appears in Chapter II of the Costa Rican Family Code and applies specifically to the rights of parents when a child is born in wedlock.   The court interpreted these provisions as setting forth the general rule in Costa Rican law that provides a joint or equal right of custody to both parents when a child is born in wedlock. See Fernandez v. Somaru, No. 2:12-CV-262-FtM-29DNF, 2012 WL 3553779, at *7 n.5 (M.D. Fl. Aug. 17, 2012). Article 157, which appears in Chapter III of the Family Code, applies to children like J.S.M.P, who were born outside of marriage, and only provides for joint or equal rights of custody to both parents if the mother exercised parental authority together with the father. According to Article 155,5 which also appears in Chapter III of the Costa Rican Family Code, when a child is born outside of marriage, the mother, even if she is a minor, has the right to exercise parental authority over a child born outside of marriage and has full legal status for these purposes.. The father, on the other hand, only has the right to exercise parental authority together with the mother in special cases, if such authority is conferred by a tribunal or court upon request of a party or the Patronato Nacional de la Infancia and done solely in consideration of the child’s interests.  In Fernandez v. Somaru, an ICARA case, the court reached the same conclusion based on expert testimony and an official translation of Costa Rican law regarding parental custody: Costa Rican law provides, [in the event a child is born out of wedlock], that, [t]he mother, even when she is under age, shall have custody of the children born out of wedlock and shall have legal rights for that purpose. The Tribunal could, in special cases, confer custody to the father and natural mother jointly, according to its judgement, or upon request from Patronato Nacional de la Infancia and concerning solely the minors’ interests.

The court concluded that Petitioner did not share rights of custody under Costa Rican law with Respondent with respect to J.S.M.P. because he did not allege and had not established that: (1) the parties had a legally binding agreement to share custody of J.S.M.P; or (2) the Patronato Nacional de la Infancia had conferred him with rights of joint custody as to J.S.M.P. As a result, Petitioner could not have been exercising his alleged rights of custody together with J.S.M.P.’s mother when the child was removed from Costa Rica by his mother, and the removal was not wrongful. Thus, even assuming that the Petition for J.S.M.P.’s return was not subject to a well-settled defense by Respondent as a result of Petitioner’s allegations regarding the reasons for his delay in filing his Petition more than one year after J.S.M.P.’s removal, Petitioner had not shown a substantial likelihood that he will be able to succeed on the merits of his Petition under the Convention, ICARA, and applicable law, which require a showing that J.S.M.P.’s removal from Costa Rica was wrongful.