United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION GRANTING MOTION FOR TEMPORARY
RESTRAINING ORDER AND SETTING PRELIMINARY INJUNCTION
before the Court is an expedited motion for preliminary
relief and for an expedited hearing under the Convention on
the Civil Aspects of International Child Abduction (the
"Hague Convention")  filed by Petitioner Lourdes
Guadalupe Lored Alanis ("Petitioner").
Petitioner's present motion shall be construed as a
motion for a temporary restraining order and preliminary
injunction hearing pursuant to Rule 65(b) of the Federal
Rules of Civil Procedure. In her motion, Petitioner requests
the following expeditious relief: an Order (a) prohibiting
Respondent from removing the child from the jurisdiction of
this Court and (b) setting a hearing upon the petition and
commanding Respondent to appear before the Court with the
child to show cause why she was allegedly unlawfully abducted
and retained in the United States in alleged contravention of
Mexican Law and the Hague Convention. Upon due consideration,
the Court finds as follows.
Factual and Procedural Background
November 21, 2016, Petitioner filed her petition  for
return pursuant to the Hague Convention. Petitioner maintains
that she is a citizen of Mexico; that Respondent Jose Carmen
Badillo Reyes ("Respondent") is also a citizen of
Mexico; and that the two are the parents of a daughter, DFB,
who was born in Mississippi in September of 2007 and is a
citizen of the United States. Pet.  ¶ 4. Petitioner
further maintains that from September 2007 and December 2009,
Petitioner, Respondent, and DFB lived in Horn Lake,
Mississippi, but that in December of 2009, with the written
consent of Respondent, Petitioner and DFB moved to
Petitioner's family home in Ciudad Fernandez, San Luis
Potosi, Mexico; that Petitioner and Respondent ceased being
romantically involved; and that Respondent ceased all contact
and support of DFB in 2012. Id. ¶ 5. Petitioner
next maintains that from December 2009 to August 2016, DFB
lived with Petitioner in Mexico. Id. ¶ 6.
Petitioner avers that on August 14, 2016, Petitioner granted
temporary authorization for DFB to travel with
Respondent's sister, Anel G. Valdivia, from Mexico to
Valdivia's home in Irving, Texas, and that Respondent
subsequently discovered via Facebook that DFB was in Irving,
Texas. Id. ¶ 7. Petitioner further avers that
on August 31, 2016, Respondent traveled to Irving, Texas,
took custody of DFB, and removed her to Horn Lake,
Mississippi-all without the consent of Petitioner.
Id. ¶ 8. Petitioner maintains that more than
ten times she requested that Respondent return DFB to
Petitioner in Mexico, but that Respondent refuses to respond
to her requests and no longer answers the telephone when
Petitioner calls from her phone number. Id. ¶
9. Finally, Petitioner avers that she filed an application
pursuant to the Hague Convention with the Mexican authorities
on September 26, 2016. Id. ¶ 10.
requests that the Court enter an Order granting her
preliminary relief by prohibiting the removal of the child
from the jurisdiction of this Court. Petitioner further
requests that the Court issue an order or orders commanding
Respondent to voluntarily appear or be brought before the
Court with the child to show cause for why the child has been
kept from her mother, Petitioner, in alleged contravention of
Mexican Law and the Hague Convention. On December 12, 2016,
the Desoto County Sheriffs Department served Respondent with
the petition. See Summons Returned Executed .
Federal Rule of Civil Procedure 65(b) Standard
to Rule 65(b) of the Federal Rules of Civil Procedure,
[t]he court may issue a temporary restraining order without
written or oral notice to the adverse party or its attorney
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and
(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
Fed. R. Civ. P. 65(b)(1). The Court may issue a temporary
restraining order if the movant establishes "that [s]he
is likely to succeed on the merits, that [s]he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in h[er] favor, and that an
injunction is in the public interest." Winter v.
Nat. Res. Def Council, Inc., 555 U.S. 7, 20, 129 S.Ct.
365, 172 L.Ed.2d 249 (2008). Furthermore, "[injunctive
relief [is] an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such
relief." Id. at 22, 129 S.Ct. 365.
Likelihood of Success on the Merits
under Rule 65(b), the Court must find that the Petitioner
will likely succeed on the merits of her petition before
granting the requested temporary restraining order and other
relief. The petition has been filed pursuant to the Hague
Convention and the International Child Abduction Remedies Act
Hague Convention was adopted to address the problem of
international child abductions during domestic
disputes." Berezowsky v. Ojeda, 765 F.3d 456,
465 (5th Cir. 2014) (citing Lozano v. Montoya Alvarez,
__U.S.__, 134 S.Ct. 1224, 1228, 188 L.Ed.2d 200 (2014)).
The objectives of the Hague Convention are: (1) "to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State, " and (2) "to
ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in other
Contracting States." Hague Convention, art. 1.
evaluating a Hague Convention claim, we do not assess the
merits of the underlying custody dispute. Rather, our inquiry
is limited to determining whether or not the child has been
wrongfully removed from their country of 'habitual
residence.' " Berezovsky, 765 F.3d at 465.
Therefore, the ultimate question before the Court is whether
or not DFB has been wrongfully removed from her country of
habitual residence by bringing her back to Mississippi.
Because Petitioner filed this action under the Hague
Convention, she must ultimately demonstrate by ...