United States District Court, D. South Carolina, Columbia Division
TEMPORARY RESTRAINING ORDER and RULE TO SHOW
C. COGGINS, JR. UNITED STATES DISTRICT COURT JUDGE.
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
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.
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.
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.
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).
The Ex Parte Nature of Father's Request
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)
The Temporary Restraining Order
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 ...