United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
January 10, 2018, petitioner, Lorenzo Ramos Hernandez
("Father" or "petitioner"), filed an ex
parte expedited motion for a temporary restraining order
("TRO") 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. See [D.E. 6]. Father requests that
1. Issue an order prohibiting Nubia Avila Montes
("Mother") and Fredy Leonel Barrios
("Barrios") or any others acting on their behalf or
at their direction from removing his son, N.R.A. (the
"Child"), from this jurisdiction pending resolution
of this action;
2. Issue an order taking into safekeeping 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, Barrios, 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.
explained below, the court grants Father's motion and
schedules the preliminary injunction hearing for Monday,
January 22, 2018, at 2:00 p.m., in courtroom one of the Terry
Sanford Federal Building, 310 New Bern Avenue, Raleigh, North
Hague Convention protects "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 by returning
children to their home countries for further proceedings. See
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).
Thus, the underlying custody case is not at issue under the
Hague Convention. Rather, the treaty requires a child to be
returned home for any custody proceedings. See Id.
accomplish the goal of maintaining the status quo, the court
may 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 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."). Article 7(b) of the Hague Convention and 22
U.S.C. § 9004 permit courts 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) (unpublished);
Smith v. Smith, No. 116-CV-264-MOC-DLH, 2016 WL
4154938, at *3 (W.D. N.C. Aug. 4, 2016) (unpublished);
Velasquez v. Velasquez, No. 1:14CV1688 (JCC/TRJ),
2014 WL 7272934, at *1 (E.D. Va. Dec. 15, 2014)
(unpublished); Alcala v. Hernandez, No.
4:14-CV-4176-RBH, 2014 WL 5506739, at *1 (D.S.C. Oct. 30,
on Father's allegations and the record, relief without
notice to Mother or Barrios is necessary to avoid immediate
and irreparable injury, loss, and damage. As required by Rule
65(b)(1)(B), Father's counsel has properly certified to
the court the reasons why notice should not be required. See
[D.E. 6-2] 2-3. Thus, the elements of Rule 65(b)(1)(B) are
met. See Fed.R.Civ.P. 65(b)(1)(B).
plaintiff seeking preliminary injunctive relief must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tip in his
favor, and that an injunction is in the public
interest." Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008); see The Real Truth
About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir.
2009), vacated on other grounds, 559 U.S.
1089 (2010), reissued in relevant part, 607
F.3d 355, 356 (4th Cir. 2010) (per curiam). After examining
these factors, the court finds that the requested TRO is
authorized and necessary in this case.
the court finds that allowing the Mother to flee with the
Child would result in irreparable harm. See Alcala,
2014 WL 5506739. at *6. Second, me court finds that any
threatened harm to Mother and Barrios is minimal as compared
to the probability of irreparable harm to Father and the
Child. As explained in Father's memorandum in support of
the motion, Father is not seeking a permanent custody order
from this court. See [D.E. 7] 10. Moreover, because the court
cannot make a custody determination, the court finds that
Mother cannot lose any custody rights from the TRO. See
Abbot v. Abbot, 560 U.S. 1, 20 (2010)
("Ordering a return remedy does not alter the existing
allocation of custody rights, but does allow the courts of
the home country to decide what is in the child's best
interests. It is the Convention's premise that courts in
contracting states will make this determination in a
responsible manner." (citations omitted)).
the court finds that Father has demonstrated that he is
likely to succeed on the merits. Father's evidence shows
that (1) the Child's habitual residence was Mexico
immediately before the wrongful retention; (2) Father has
"rights of custody" under Mexican law; and (3)
Father was exercising his rights of custody and would have
continued doing so but for Mother's wrongful retention of
the Child in the United States. See[D.E. 7] 11-15. Fourth,
the public interest supports issuing the TRO. See
Salguero v. Argueta, No. 5:17-CV-125-FL, 2017 WL
1067758, at *2 (E.D. N.C. Mar. 21, 2017) (unpublished)
("Finally, a TRO serves the public interest. Since
international abduction [and] wrongful retention of [a]
child is harmful to [his or her] well-being, ' a TRO in
this case will serve the public ...