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Velasquez v. De Velasquez

United States District Court, E.D. Virginia, Alexandria Division

December 15, 2014

OSCAR EDGARDO VELASQUEZ, Petitioner,
v.
MARIA TERESA FUNES DE VELASQUEZ, Respondent.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter is before the Court on Petitioner Oscar Edgardo Velasquez's ("Petitioner" or "Father") Ex Parte Motion under the Hague Convention for Entry of a Temporary Restraining Order ("TRO") and Application for Warrant Seeking Physical Custody of Child ("the Motion") pursuant to Rule 65(b) of the Federal Rules of Civil Procedure [Dkt. 4.], with a Brief in Support (Pet.'s Br. [Dkt. 5]). For the reasons discussed below, the Court will grant the ex parte Motion in part.

I. Background

On December 11, 2014, the Father filed a Verified Complaint and Petition for Return of the Children pursuant to the Convention on the Civil Aspects of International Child Abduction[1] (the "Hague Convention"), which is implemented under the law of the United States through the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001-9011, formerly cited as 42 U.S.C. §§ 11601-11611. (Verified Compl. [Dkt. 1] ¶ 2.) The Verified Complaint and Petition ultimately seeks a final judgment returning Father's children to El Salvador, the place of habitual residence, where an appropriate custody determination can be made. (Id. at 8.)

The Court has jurisdiction over this matter pursuant to 22 U.S.C. § 9003(a), formerly cited as 42 U.S.C. § 11603(a), and 28 U.S.C. § 1331. Venue is proper pursuant to 22 U.S.C. § 9003(b), formerly cited as 42 U.S.C. § 11603(b), and 28 U.S.C. § 1391(b).

On December 15, 2014, the Court held an expedited ex parte hearing.[2] The evidence of record currently before the Court includes the evidence presented by the Father during the ex parte hearing and the Father's Verified Complaint, which establishes the following factual background.

On March 3, 2006, Father and Respondent Maria Teresa Funes De Velasquez ("Respondent" or "Mother") were married in Santa Elena, at the Department of Usulutan, in El Salvador. (Verified Compl. ¶ 6.) Two daughters are the product of this marital union: seven-year-old M.D.F. born in 2007, and five-year-old M.A.F. born in 2009 (the "daughters"). (Id. at ¶¶ 7-8.) Until relatively recently, this family of four resided in El Salvador, where the daughters attended school. (Id. at ¶ 9-10.)

On November 18, 2013, Father, Mother, and the daughters traveled from El Salvador to the State of Maryland in the United States with a scheduled return date of January 25, 2014. (Verified Compl. ¶ 11.) Unexpectedly, Father had to return to El Salvador earlier than planned without the rest of his family, but he returned to the United States on February 20, 2014 and bought tickets for February 28, 2014 for his family to return to El Salvador. (Id. at ¶¶ 12-13; Ex. F.) On February 27, 2014, Mother advised she was not returning to El Salvador but instead remaining in the United States with the two daughters. (Id. at ¶ 14.) In response, Father called the police, alleging Mother was attempting to kidnap the daughters, but the police treated the incident as a domestic dispute, and Father eventually left the scene and returned to El Salvador without Mother and his two daughters. (Id. at ¶¶ 15-16.) Father left to avoid further altercation but he did not give his consent for the daughters to stay with Mother in the United States. (Id. at ¶¶ 16, 28.)

Since then, Father attempted to persuade Mother to return the daughters to El Salvador, but learned that Mother wanted to stay in the United States because of a new boyfriend and had no intent to return the daughters to El Salvador. (Verified Compl. ¶¶ 14, 17.) Father later traveled to the United States on three separate occasions to persuade Mother to allow the daughters to return with him to El Salvador, but Mother refused, and remains, with no legal status, in the United States with the daughters and her boyfriend in Manassas, Virginia. (Id. at ¶¶ 18-20; Ex. G.) On August 4, 2014, Father submitted a Request for Return of Children to the United States Department of State through the Spanish Central Authority. (Id. at ¶ 21; Ex. H.)

The Father's documentary evidence establishes the following: he is listed as the father on the daughters' birth certificates (Verified Compl. Exs. B, C); prior to November of 2013, the daughters resided in El Salvador where they attended school (id. Exs. D, E); and Father has not consented to the daughters continued presence in the United States with their Mother and has attempted on numerous occasions to return the daughters to El Salvador (id. Exs. F, G, H). Accordingly, Father seeks the following relief: (1) an immediate TRO prohibiting removal of the daughters, by Mother or any person acting in concert with Mother, from the Eastern District of Virginia until a hearing on the merits of the Verified Complaint; (2) an expedited preliminary injunction hearing on the merits of the Verified Complaint consolidated with the trial of the action on the merits where the Mother show cause why the daughters should not be returned to El Salvador; and (3) a warrant for physical custody of the daughters that directs the United States Marshal to place the daughters with Father's cousin until final disposition of this matter.

II. Standard of Review

A. The Hague Convention

"The Hague Convention seeks to protect children[3] 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, as well as secure protection for rights of access." Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009) (quoting Hague Convention, pmbl., 19 I.L.M. at 1501) (internal quotations omitted). Courts effectuate this intent by "preserv[ing) the status quo[.]" Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).

To maintain the status quo, "the Court is empowered to take appropriate measures to prevent... prejudice to interested parties by taking or causing to be taken provisional measures.'" Alcala v. Hernandez, No. 4:14-CV-4176-RBH, 2014 WL 5506739, at *3 (D.S.C. Oct. 30, 2014) (quoting Hague Convention, art. 7(b)). This Court "is permitted to implement all necessary procedures to prevent the child's further removal or concealment before the final disposition of the petition." Id . (quoting 22 U.S.C. § 9004(a)) (internal quotations omitted). Indeed, federal district courts across the country have used 22 U.S.C. § 9004 to take provisional measures to ensure that children are not relocated or concealed prior to completion of the Hague Convention proceedings. Id . (citing cases).

B. TRO

Father's requested relief for such "provisional measures" under 22 U.S.C. § 9004 are "analogous to a temporary restraining order[.]" Id . (citing Dionysopoulou v. Papadoulis, 2010 WL 5394896 (M.D. Fla. Dec. 23, 2010) (citing McCullough v. McCollough, 4 F.Supp.2d 411, 415 (W.D. Pa. 1998))). Rule 65(b) of the Federal Rules of Civil Procedure governs temporary restraining orders. "The standard for granting either a TRO or a preliminary injunction is the same." Moore v. Kempthorne, 464 F.Supp.2d 519, 525 (E.D. Va. 2006) (citations omitted). "A plaintiff seeking a preliminary injunction 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 tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008); see also ...


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