Esparza De La Torre v. Login

Background

Carlos Alberto Esparza De La Torre sought the return of his and Mylea Evelyn Login’s five-year-old daughter, I.S.E.L. He alleged that Login took the child from Mexico to the United States on August 9, 2023, without his consent, violating Mexican custody orders and the Hague Convention on the Civil Aspects of International Child Abduction as implemented by the International Child Abduction Remedies Act.

The Mexican judgment described joint custody, gave Login weekday custody and Esparza De La Torre alternating-weekend custody, and required written consent before either parent took I.S.E.L. out of Mexico. Esparza De La Torre alleged that he had not had contact with Login or I.S.E.L. since the child’s removal. He asked the court to prevent the child’s removal from the Northern District of California, place the child temporarily in his custody, schedule an expedited hearing, and authorize the United States Marshals Service to bring Login and the child to court.

Notice and legal standard

When Esparza De La Torre filed the motion, Login had not been given proper notice. The court therefore treated the request as a temporary restraining order without written or oral notice under Federal Rule of Civil Procedure 65(b)(1). The court directed Esparza De La Torre to serve Login and ordered an expedited response, but found no evidence that Login had been properly served.

Under the International Child Abduction Remedies Act, a court may take measures to protect a child or prevent further removal or concealment before the case is finally decided. For a temporary restraining order, the requesting party must show a likelihood of success, likely irreparable harm without the order, favorable balancing of hardships, and that the order serves the public interest.

Court’s analysis

The court concluded that preventing Login from removing I.S.E.L. from the Northern District of California was appropriate. That restriction maintained the existing situation, was minimally burdensome, and helped ensure that the child remained within the court’s jurisdiction while Esparza De La Torre’s claim and custody rights could be considered.

The court rejected the request to immediately place I.S.E.L. in Esparza De La Torre’s custody. It found that the record did not show a likelihood of irreparable harm requiring the child to be removed from Login’s custody by force. The court noted that Login appeared settled in the district, had an apartment in Ukiah, and had filed a child-custody case in Mendocino County. It also found that Esparza De La Torre’s inability to serve Login did not establish that she intended to hide herself or the child, because the record showed problems with his attempted service. The court further found no evidence that I.S.E.L. was in immediate danger while in Login’s custody.

Order

The court ordered Esparza De La Torre to serve Login directly with the listed case documents and this order by 5:00 p.m. on July 3, 2024, and to file proof of service. It granted the temporary restraining-order motion in part by prohibiting Login from directly or indirectly removing I.S.E.L. from the Northern District of California until July 11, 2024, unless the court ordered otherwise.

The court found that Esparza De La Torre did not need to provide security for the restraint. It ordered Login to explain in writing by July 9 why the requested relief, including returning I.S.E.L. to Mexico, should not be granted. The parties were ordered to appear before Judge William H. Orrick on July 11 for a hearing, at which the court would consider whether an evidentiary hearing or further proceedings were needed. The court otherwise denied Esparza De La Torre’s motion for a temporary restraining order. Judge Gilliam signed the order as general-duty judge for Judge William H. Orrick.