United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge
Kimberly
Colin La Salle (“Mother”) and Dominick Johnathan
Adams (“Father”) are the parents of two minor
children, E.N.A. and M.E.Y.A. (collectively, “the
Children”). On August 19, 2019, Mother filed an amended
verified 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. 6.)
In a
nutshell, the petition contains the following allegations.
Mother, a Canadian citizen, and Father, a United States
citizen, “lived together as husband and wife in
Alberta, Canada from April 2011 until their divorce in
October of 2018.” (Id. ¶¶ 12, 13,
20.) The Children were born in Canada in 2012 and 2013,
respectively, and “have lived in Alberta, Canada from
the times of their respective births.” (Id.
¶¶ 9, 27.) Following the divorce in October 2018, a
Canadian court issued a custody order that “grant[ed]
joint custody of the Children”-specifically,
“[t]he Children are to reside primarily with the
[Father], and stay with the [Mother] every other weekend
during the school year, and every other week during the
summer.” (Id. ¶¶ 21-23.) However, in
February 2019, Father “pulled the Children out of
school, moved out of his home in Alberta, Canada, and removed
the Children to Sun City, Arizona, ” where they remain
to this day. (Id. ¶ 28.) Mother has engaged in
some email correspondence with Father since the move, but he
has “failed to provide . . . a firm date of return for
the Children” and “denied [Mother] her rights to
access and communication with the Children as required under
the Custody Order.” (Id. ¶¶ 29-45.)
The
petition seeks, among other things, an order
“establishing that the Children shall be returned to
Alberta, Canada where an appropriate custody determination
can be made by a Canadian court under Canadian law.”
(Id. at 9.) Additionally, Mother has filed an
amended application to proceed in forma pauperis
(Doc. 7) and an ex parte motion requesting (1) an
expedited hearing, (2) an order compelling Father not to
remove the Children from the District of Arizona pending
resolution of this dispute, (3) an order compelling Father to
“[s]urrender the Children's passports to the Court,
” and (4) an order requiring the United States Marshals
Service (“USMS”) to serve the petition on Father
(Doc. 9).
The
Court rules on Mother's requests as follows. First,
Mother's amended application to proceed in forma
pauperis (Doc. 7) will be granted.[1]
Second,
because Mother has been granted leave to proceed in forma
pauperis, she's also entitled to have the USMS
effectuate service of the petition upon Father. See
Fed. R. Civ. P. 4(c)(3). Mother's ex parte
motion includes a request for USMS service (Doc. 9 at 2), so
that request will be granted.
Third,
to the extent Mother's ex parte motion asks the
Court to set an expedited hearing, that request will be
denied without prejudice. To be clear, the Court intends to
give this matter expedited consideration. See generally
Lops v. Lops, 140 F.3d 927, 944 (11th Cir. 1998)
(“Article 11 of the Hague Convention contemplates an
immediate emergency hearing in international child abduction
cases and a judicial decision within six weeks.”);
Martinez-Castaneda v. Haley, 2013 WL 12106712, *4
(W.D. Tex. 2013) (“The treaty contemplates that a case
for the return of a child will be decided expeditiously.
After a period of six weeks has passed from the time of
filing of the case, the State Department may inquire of the
court handling the case to provide reasons for the delay in
disposing of the case.”). However, before setting a
discovery, briefing, and hearing schedule, Mother must
demonstrate that Father is aware of the proceedings.
See 22 U.S.C. § 9003(c) (“Notice of an
[ICARA action] shall be given in accordance with the
applicable law governing notice in interstate child custody
proceedings.”); 28 U.S.C. § 1738A(e)
(“Before a child custody or visitation determination is
made, reasonable notice and opportunity to be heard shall be
given to the contestants, any parent whose parental rights
have not been previously terminated and any person who has
physical custody of a child.”). Thus, the case
can't proceed until the USMS is able to effectuate
service upon Father. Cf. Ebanks v. Ebanks, 2007 WL
2591196, *3 (S.D.N.Y. 2007) (“ICARA . . . provides the
method for service in Hague Convention proceedings: ‘in
accordance with the applicable law governing notice in
interstate child custody proceedings.' Therefore,
Petitioner needed to serve his petition papers upon
Respondent in accordance with [state] law.”) (citation
omitted). Once Father is properly served, the Court will hold
a status conference to solicit the parties' input on how
to proceed.
Fourth,
to the extent Mother's ex parte motion asks the
Court to issue an order compelling Father to surrender the
Children's passports and to keep the Children in Arizona
until these proceedings are completed, that request-which the
Court construes as a request for a temporary restraining
order (“TRO”)-also will be denied without
prejudice. 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.
Here,
Mother hasn't shown a likelihood of irreparable harm in
the absence of a TRO. Specifically, Mother hasn't
presented any specific evidence suggesting that Father is
likely to flee from Arizona, taking the Children with him, 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”). Additionally, even if the Court
were to grant the injunctive relief sought by Mother,
it's unclear the injunction would have any practical
effect because Father isn't currently aware of these
proceedings and TROs ordinarily must expire within 14 days of
issuance. See Fed. R. Civ. P. 65(b)(2).
Accordingly,
IT IS ORDERED that:
(1)
Mother's amended application to proceed in forma
pauperis (Doc. 7) is granted to the
extent it is not moot;
(2)
Mother's ex parte motion (Doc. 9) is
granted in part and denied in part.
Specifically, Mother's request for USMS assistance in
serving the petition on Father is granted, but Mother's
requests for an expedited hearing, for an order compelling
the Children to remain in Arizona pending resolution of this
dispute, and for an order compelling Father to surrender the
Children's passports are denied without prejudice;
(3) The
Clerk of Court shall prepare the service packet, which
includes the summons appearing at Document 11. The Clerk of
Court is directed to deliver the packet to the USMS for
service. Service shall be at government expense on Father by
the USMS or an authorized representative. The USMS is
instructed to personally serve upon Father, at the address
listed on the summons, the amended petition and all
attachments thereto (Doc. 6) and this Order.
(4)
Mother shall file a “Request for Status
Conference” once the docket reflects that ...