United States District Court, D. South Carolina, Florence Division
ORDER FOR CLAUDIA GARCIA HERNANDEZ TO APPEAR AND SHOW CAUSE; TEMPORARY RESTRAINING ORDER; ORDER DENYING REQUEST FOR CUSTODY WARRANT; ORDER TAKING JUDICIAL NOTICE OF MEXICAN LAW; AND ORDER DENYING MOTION TO SEAL
R. BRYAN HARWELL, District Judge.
This matter was initiated by a Verified Petition filed pursuant to the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001-9011, formerly cited as 42 U.S.C. §§ 11601-11611.
This Court has jurisdiction over this case pursuant to 22 U.S.C. § 9003(a) (jurisdiction under the Hague Convention) and 28 U.S.C. § 1331 (federal question jurisdiction). Venue is proper pursuant to 22 U.S.C. § 9003(b) and 28 U.S.C. § 1391(b).
Pending before the Court are: 1) Petitioner's [Docket Entry #5] Motion for Temporary Restraining Order and Application for a Custody Warrant and Request for Scheduling of an Expedited Hearing; 2) Petitioner's [Docket Entry #6] Motion to Seal; and 3) Petitioner's [Docket Entry #7] Motion to Take Judicial Notice of Mexican Law.
The Court conducted an ex parte hearing on October 28, 2014, at 4:00 p.m. and due to the unusual nature of the matter, legal issues involved, and the extensive filings, the Court took the matter under advisement.
In his Motion [Docket Entry #5] for Temporary Restraining Order, Petitioner Fernando Contreras Alcalá ("Father"), seeks: 1) the issuance of a restraining order preventing Respondent Claudia Garcia Hernandez ("Mother") from leaving the jurisdiction along with a Rule to Show Cause requiring Mother to appear at a hearing to show cause why the minor children should not be returned to Mexico; 2) the issuance of a warrant for the physical custody of minor children; and 3) an order scheduling an expedited hearing on the merits of Father's Verified Petition pursuant to the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), the International Child Abduction Remedies Act (the "ICARA"), 22 U.S.C. §§ 9001-9011, and Federal Rule of Civil Procedure 65.
In the Motion [Docket Entry #6] to Seal, Petitioner asks the court to seal any warrant for physical custody of the minor children issued along with an additional document submitted to chambers, which identifies the minor children by name and date of birth.
Finally, the Motion [Docket Entry #7] to take Judicial Notice of Mexican Law requests the court take judicial notice of Mexican law as reflected in Petitioner's expert affidavit [Docket Entry #7-2] and Article 15 Declaration made by Maria Cristina Oropeza Zorrilla, Director of Family Law for the Mexican Central Authority. [Docket Entry #7-3].
Having conducted an ex parte hearing on the Motions and considered the arguments of Father's counsel and the entire record, the Court hereby GRANTS in part and DENIES in part Petitioner's [Docket Entry #5] Motion for Temporary Restraining Order and Application for a Custody Warrant and Request for Scheduling of an Expedited Hearing. The Court will issue a Temporary Restraining Order and Order Respondent to Appear and Show Cause but declines to issue the requested custody warrant for the children. The Court will schedule an expedited hearing on the request for a preliminary injunction but denies Petitioner's request to consolidate the final merits hearing into the preliminary injunction hearing so as to provide the Respondent with adequate time to respond to the matters before the court and retain counsel. Rule 65(b)(3) requires an expedited preliminary injunction hearing but recognizing the necessity of this Order being translated for the benefit of Respondent, the Court has scheduled the preliminary injunction hearing for Thursday, November 6, 2014, at 9:30 a.m. at the Florence federal courthouse.
The Court DENIES Petitioner's [Docket Entry #6] motion to seal as moot and GRANTS Petitioner's [Docket Entry #7] motion to take judicial notice of Mexican Law for purposes of this Temporary Restraining Order.
I. Father's Verified Petition
The evidence of record presented by Father indicates that on June 17, 2013, Respondent Claudia García Hernández ("Mother"), who is the mother of F.C.G., a ten-year old Mexican national, and A.C.G., a two-year old Mexican national (collectively, the "Children"), wrongfully removed the Children, against Father's express wishes, from their familial home in Mexico and brought the children into the United States illegally and without prior notice. Further, the evidence presented by Father shows that he is listed on the Children's birth certificates, and has sufficient parental custody rights under the Hague Convention such that Mother's removal of the Children from Mexico without his consent wrongfully deprived him of his parental rights that he was exercising just prior to the removal. Father has indicated to the Court that Mother has, in violation of his expressed direction to the contrary, brought the Children into the United States illegally, knowing that Father instead wished for the family to stay in Mexico. After their alleged abduction, Father has alleged that it took more than a year to locate the Children who were being hidden in Florence, South Carolina by Mother, even with the aid of the State Department and law enforcement. Father has alleged that Mother is in Florence, South Carolina with the Children's grandmother, Lorenza Hernández Perez, and their aunt, Andrea García Hernández. Father alleges that Mother has other relatives in the United States illegally who are living outside of this judicial district.
II. Preliminary Injunction Hearing
In light of Father's contentions in the Verified Petition, the Court has determined that it is necessary to hold a preliminary injunction hearing to determine whether the temporary restraining order should remain in effect pending a full hearing on the merits. The court declines to consolidate the preliminary injunction hearing into the final merits hearing as requested by the Father. The Court anticipates that the Mother will require a reasonable amount of time to prepare for the hearing and retain counsel if desired. The court stresses, however, that the issue of permanent custody of the Children is not properly before the Court. See Bader v. Kramer, 484 F.3d 666, 670 (4th Cir. 2007) (observing that "a determination on the merits of the parent's underlying custody claim" is "reserved for the courts of the country of habitual residence").
III. Provisional Remedies
The Hague Convention is intended "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009) (emphasis added). To further this intent, courts are called on to preserve the status quo-the return of the child to his home country for further proceedings. See Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). To accomplish the goal of maintaining the status quo, the Court is empowered to take appropriate measures "to prevent... prejudice to interested parties by taking or causing to be taken provisional measures." Hague Convention, art. 7(b). These "provisional measures" are available to the court exercising jurisdiction over the action just as if it were the appropriate court under State law-indeed the ICARA requires the court exercising jurisdiction to ensure that the applicable requirements of State law are satisfied. 22 U.S.C. § 9004(b). Once those requirements are met, the court is permitted to implement all necessary procedures "to prevent the child's further removal or concealment before the final disposition of the petition." Id. § 9004(a).
Federal courts across the country have used the authority granted to them by § 9004, formerly cited as 42 U.S.C. § 11604, to take provisional measures to ensure that abducted children are not removed from their jurisdiction prior to completion of Hague proceedings. See, e.g., Mauvais v. Herisse, No. 13-13032-GAO, 2013 U.S. Dist. LEXIS 170901, at *5-6 (D. Mass. Dec. 4, 2013) (prohibiting abductor from removing children from the jurisdiction during the pendency of the proceedings); Porter v. Gonzalez, No. 09-0753, 2009 U.S. Dist. LEXIS 53866, at *3 (M.D. Fla. June 24, 2009) (noting in a case arising under the Hague Convention that child's passport was ordered to be surrendered to the clerk of court and respondent was prohibited from removing minor child from the jurisdiction); Jenkins v. Jenkins, No. 08-0037, 2008 U.S. Dist. LEXIS 18347, at *2 (S.D. Ohio Feb. 19, 2008) (ordering respondents to surrender passports and prohibiting them from leaving the jurisdiction of the court pending resolution of petition under the Hague Convention), aff'd, 569 F.3d 549 (6th Cir. 2009); Suki v. Kovacs, No. 95-6805, 1995 U.S. Dist. LEXIS 15867, at *2 (E.D. Pa. Oct. 27, 1995) (observing in a case arising under the Hague Convention that "[o]rdinarily, the court would enter an order requiring respondent to surrender her passport [and] to remain in the Eastern District of Pennsylvania pending a resolution of this action....").
a. Ex Parte Nature of the Requests
Father's request for relief was heard on an ex parte basis under Federal Rule of Civil Procedure 65(b)(1). Based on Father's allegations and the findings below, I find that relief without notice to Mother is necessary to avoid immediate and irreparable injury, loss, and/or damage if Mother were to be given notice of the proceedings prior to this Order. As required by Rule 65(b)(1)(A), Father's attorney has properly certified to the Court the reasons why notice should not be required.
b. TRO Prohibiting Mother from Removing Children and Order to Show Cause
Father has requested the Court issue an order prohibiting Mother from removing the Children from the jurisdiction and a Rule to Show Cause requiring Mother to appear and show cause as to why the Children should not be returned to their home country of Mexico.
The Court finds that Father's request for provisional measures authorized by 22 U.S.C. § 9004 are "analogous to a temporary restraining order...." Dionysopoulou v. Papadoulis, 2010 U.S. Dist. LEXIS 138357, at *6 (M.D. Fla. Dec. 23, 2010) (citing McCullough v. McCullough ( In re McCullough ), 4 F.Supp.2d 411, 415 (W.D. Pa. 1998)). Rule 65 of the Federal Rules of Civil Procedure establishes the procedure ...