United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA, UNITED SLATES DISTRICT JUDGE
Michael
Abraham Farr (“Father”) and Bonnie Jeanene
Kendrick (“Mother”) are the divorced parents of
minor children E.G.F. and E.C.F. (collectively, “the
children”). Four days ago (on April 29, 2019), Father
filed a pro se petition under the International
Child Abduction Remedies Act (“ICARA”), 22 U.S.C.
§ 9001 et seq., which implements the provisions
of the Hague Convention on the Civil Aspects of International
Child Abduction. (Doc. 1.) The petition alleges that, in
August 2018, Mother improperly removed the children from
Mexico, where they had been residing with Father, and took
them to live with her in Arizona. (Id. at 3-5.) The
petition seeks, among other things, “[a] final judgment
and order in [Father's] favor directing a prompt return
of the minor children . . . to their habitual residence of
Mexico.” (Id. at 14.) The petition also
asserts that “Mother will be given notice of these
proceedings in accordance with 28 U.S.C. § 1738A(e) and
A.R.S. §§ 25-1008, -1035(A) and -1059.”
(Id. at 14.)
Two
days ago (on May 1, 2019), the Court issued an order stating
that it intends to give this matter expedited consideration.
(Doc. 5.) The order further explained, however, that
“before setting a discovery, briefing, and hearing
schedule, Father must demonstrate that Mother is aware of the
proceedings.” (Id., citing 22 U.S.C. §
9003(c) and 28 U.S.C. § 1738A(e)). The order thus
clarified that “once Father submits proof that Mother
was properly served (the docket reflects that Father already
has obtained a summons), the Court will hold a status
conference to solicit the parties' input on how to
proceed.” (Id.)
Yesterday
(on May 2, 2019), Father filed a document entitled “Ex
Parte Motion for Expedited Hearing and an Order for the
Children to Remain in the State of Arizona.” (Doc. 7.)
In this motion, Father asks the Court (1) to issue an
injunction prohibiting Mother from removing the children from
Arizona during the pendency of this case and requiring Mother
to surrender the children's passports and (2) to set an
immediate hearing on the petition. (Id. at 8, 10.)
Finally, the “proof of service” on the bottom of
the final page of the motion states that “a copy is
[t]o be served upon [Mother]” (id. at 10)-a
statement that is seemingly at odds the notion that Father is
seeking relief on an ex parte basis.
Father's
motion will be denied without prejudice. As for Father's
request for injunctive relief, the Court construes it as a
request for a temporary restraining order
(“TRO”). A request for a TRO is analyzed under
the same standards as a request for a preliminary injunction.
Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush
& Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
“A preliminary injunction is ‘an extraordinary
and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion.'” Lopez v. Brewer, 680 F.3d
1068, 1072 (9th Cir. 2012) (citation and emphasis omitted);
see also Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008) (citation omitted) (“A preliminary
injunction is an extraordinary remedy never awarded as of
right”). A plaintiff seeking a preliminary injunction
must show that (1) he is likely to succeed on the merits, (2)
he is likely to suffer irreparable harm without an
injunction, (3) the balance of equities tips in his favor,
and (4) an injunction is in the public interest.
Winter, 555 U.S. at 20. “But if a plaintiff
can only show that there are ‘serious questions going
to the merits'-a lesser showing than likelihood of
success on the merits- then a preliminary injunction may
still issue if the ‘balance of hardships tips sharply
in the plaintiff's favor,' and the other two
Winter factors are satisfied.” Shell
Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291
(9th Cir. 2013) (citation omitted). Under this “serious
questions” variant of the Winter test,
“[t]he elements . . . must be balanced, so that a
stronger showing of one element may offset a weaker showing
of another.” Lopez, 680 F.3d at 1072.
Father
hasn't satisfied these standards here. First, Father
hasn't demonstrated a likelihood of success on the
merits. In an ICARA matter,
[T]he court's role is limited to determining whether, by
a preponderance of the evidence, removal or retention of the
child is wrongful under the [Hague] Convention, and if so,
order return of the minor child to the country of habitual
residence. A removal is wrongful if (a) it is in breach of
rights of custody attributed to a person . . . under the law
of the state in which the child was habitually resident
immediately before removal or retention; and (b) at the time
of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but
for the removal or retention. Notwithstanding a
finding that the removal or retention was wrongful, the court
need not order return if “there is a grave risk that
his or her return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation.”
Gonzalez v. Pena, 194 F.Supp.3d 897, 901 (D. Ariz.
2016) (citations omitted) (emphasis added). Here, although
the petition suggests Father may be able to prove that the
removal of the children to Arizona was “wrongful”
within the meaning of ICARA, it's less clear he'll be
able to satisfy the portion of the ICARA test that is denoted
in bolded text above. Notably, one of attachments to the
petition is an email from a member of Father's family.
(Doc. 1, Exh. H, at 67.) This email states that Father's
family helped bring the children to live with Mother in
Arizona because they believed Father's “need of
mental health medical support” had created a
“terrible situation” for the children in Mexico,
which included “religious fanatical suppression and
influence” and “beat[ings] with sticks and
rulers.” (Id.) The email further states that
Mother has “obtained a protective court order in
Arizona . . . in case [Father] tries to do something
stupid.” (Id.) Although it's entirely
possible that Father disputes these accusations-something he
may attempt to do during future proceedings in this case-the
Court cannot conclude, based on the limited material now
before it, that Father has met his burden of establishing a
likelihood of success on the merits.
Father
also hasn't shown he's likely to suffer irreparable
harm in the absence of a TRO. The petition alleges that
Mother took the children to Arizona in August 2018, yet the
petition wasn't filed until over eight months later. This
delay cuts against a finding of irreparable harm. See,
e.g., Oakland Tribune, Inc. v. Chronicle Pub. Co., 762
F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff's long
delay before seeking a preliminary injunction implies a lack
of urgency and irreparable harm.”); Lydo Enters.,
Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir.
1984) (“A delay in seeking a preliminary injunction is
a factor to be considered in weighing the propriety of
relief.”). Moreover, Father hasn't presented any
argument or evidence that Mother is likely to flee from the
United States, taking the children with her, in the absence
of a TRO. Such a showing is usually necessary to obtain a TRO
in an ICARA matter. See, e.g., Morgan v. Morgan, 289
F.Supp.2d 1067, 1070 (N.D. Iowa 2003) (granting TRO where
father presented evidence that “it is the intention of
[mother] to take the child out of Iowa in the very near
future; and that if a temporary restraining order is not
issued ex parte, [mother] will likely flee this
jurisdiction with the child upon receiving notice of
[father's] intent to seek a temporary restraining order
preventing them from doing so”); Application of
McCullough on Behalf of McCullough, 4 F.Supp.2d 411, 413
(W.D. Pa. 1998) (granting TRO application where Canadian
father presented evidence that mother had recently stated,
during a phone call, “that the ‘end time' was
near and that she and their children would not be returning
to Canada. [Father] understood the reference to the
‘end time' as a statement which related to his
wife's religious beliefs . . . that [her] sect . . . must
be ready to flee to Petra, Jordan if and when the
church's leader directs. Apparently, adherents believe
that only by escaping to Petra will God save them from an
apocalyptic event.”).
Given
these conclusions, it's unnecessary to analyze the third
and fourth Winter factors. Father has not met his
high burden of showing he's entitled to a
TRO.[1]
Finally,
Father's request for an immediate hearing will also be
denied. As noted in the Court's May 1, 2019 order (which
Father may not have seen at the time he filed the pending
motion), the Court will set a discovery, briefing, and
hearing schedule after Father provides proof that
Mother has been served with the petition.
Accordingly,
IT IS ORDERED that Father's “Ex
Parte Motion for Expedited Hearing and an Order for the
Children to Remain in the State of Arizona” (Doc. 7) is
denied without prejudice.
---------