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Vite-Cruz v. Sanchez

United States District Court, D. South Carolina, Columbia Division

July 18, 2018

Jose Luis Vite-Cruz, Petitioner,
v.
Yadira Del Carmen Sanchez, Respondent.

          TEMPORARY RESTRAINING ORDER and RULE TO SHOW CAUSE

          DONALD C. COGGINS, JR. UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is the Ex Parte Expedited Motion for a Temporary Restraining Order (“Motion”) (ECF No. 7) filed by Petitioner Jose Luis Vite-Cruz (“Father”) under Article 7(b) of the Hague 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. Father requests that the Court:

1. Issue an order prohibiting Yadira Del Carmen Sanchez (“Mother”) or any others acting on their behalf or at their direction from removing his son, A.V. (the “Child”), from the jurisdiction pending resolution of this action;
2. Issue an order taking into safe keeping all of the Child's travel documents, including his Mexican and American passports; and
3. Issue an expedited Rule to Show Cause ordering the appearance of Mother and the Child on the first available date on the Court's calendar so that the Court may combine the preliminary injunction hearing and the hearing on the merits, holding any final hearing on the merits of the Verified Expedited Petition as soon as possible as required by the Convention.

         Having considered the entire record in this matter to date, the Court GRANTS Father's Motion, as further explained below. The Court schedules the preliminary injunction hearing for Tuesday, July 24, 2018, at 10:30 a.m., at the Matthew J. Perry, Jr. Courthouse, 901 Richland Street, Columbia, South Carolina 29201, Courtroom #3.

         Analysis

         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). The Hague Convention seeks to preserve the status quo-the return of children to their home countries for further proceedings. Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). Thus, it is not the underlying custody case at issue under the Hague Convention, but whether the treaty requires a child to be returned home for any custody proceedings. Id. at 398.

         To accomplish the goal of maintaining the status quo, the Court is empowered to take steps “to prevent future harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures.” Hague Convention, art. 7(b); see also 22 U.S.C. § 9004(a) (allowing preventative measures “to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.”). Federal courts within the Fourth Circuit have used Article 7(b) and § 9004 to take provisional measures to ensure that abducted children are not removed from their jurisdiction during the litigation. See, e.g., Salguero v. Argueta, No. 5:17-CV-125-FL, 2017 WL 1067758, at *2 (E.D. N.C. Mar. 21, 2017); Smith v. Smith, No. 116CV00264, 2016 WL 4154938, at *3 (W.D. N.C. Aug. 4, 2016); Velasquez v. Velasquez, No. 1:14CV1688, 2014 WL 7272934, at *1 (E.D. Va. Dec. 15, 2014); Alcala v. Hernandez, No. 4:14-CV-4176, 2014 WL 5506739, at *1 (D.S.C. Oct. 30, 2014).

         I. The Ex Parte Nature of Father's Request

         Father's request for relief was heard on an ex parte basis. Based on Father's allegations and the findings below, relief without notice to Mother is necessary to avoid immediate and irreparable injury, loss, and/or damage if Mother were given notice of the proceedings prior to this Order. As required by Rule 65(b)(1)(A), Father's counsel has properly certified to the Court the reasons why notice should not be required. Thus, the elements of Rule 65(b)(1) are met.

         II. The Temporary Restraining Order

         In determining whether to grant injunctive relief, the district court must balance the hardships likely to befall the parties if the injunction is, or is not, granted. The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009). The ...


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