Sanchez v. Pliego

Background

Jonatan Rosas Sanchez (Father) filed a verified petition seeking the return of his two minor children, identified as EJRS and KJRS, to Mexico under the Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. Father alleged that Erika Sanchez Pliego (Mother) wrongfully removed the children from their habitual residence in Mexico to the United States in February 2020, violating his custody rights. He alleged that Mother and the children were in the District of Minnesota.

The court had issued an ex parte temporary restraining order on August 23, 2021. An ex parte order is issued without advance notice to the opposing party. The earlier order required Mother to surrender the children’s valid and expired passports, prohibited removing the children from the court’s jurisdiction, and required Mother to appear with the children on September 3. Mother did not appear. The process server reported delivering the case documents to Modesta Sanchez, whom the opinion identifies as Mother’s sister, and Father’s counsel represented that Father had received a text message indicating Mother knew about the proceeding.

Court’s analysis

Under Federal Rule of Civil Procedure 65(b)(2), an ex parte temporary restraining order generally expires after 14 days unless the court extends it for good cause. The court found good cause to extend the order through a hearing scheduled for September 24, 2021. The court cited the evidence that Mother had been served and knew about the case, yet failed to appear, and its concern that she was attempting to avoid detection and conceal the location of herself and the children.

The court also reiterated the findings supporting the original temporary restraining order. Based on the verified petition, it found a likelihood that Father could establish that the children were removed from Mexico in February 2020, that Mexico was their habitual residence, that the removal breached Father’s custody rights, and that Father was exercising those rights. These were preliminary findings supporting temporary relief, not a final decision on the petition for the children’s return.

The court found a threat of irreparable harm because Father could lose custody of and contact with the children. It concluded that temporarily requiring Mother and the children to remain within the District and surrender their passports would cause little harm if they were there, while their removal could substantially harm Father by making the children harder to locate. The court also found that the public interest favored maintaining the existing situation and that advance notice was not required because of concern that Mother might flee with the children.

Order

The court granted Jonatan Rosas Sanchez’s ex parte motion for an accelerated hearing and request for a temporary restraining order as follows:

- Mother must immediately surrender the children’s valid and expired passports to the process server serving the order. - The process server must return any collected passports to the District of Minnesota Clerk of Court for safekeeping. - Mother may not remove or help remove the children from the court’s jurisdiction. - Mother must appear with the children on September 24, 2021, for a show-cause hearing and scheduling hearing. The show-cause hearing would address why she should not be held in contempt for failing to appear on September 3 with the children. - If Mother failed to appear with the children on September 24, or removed or caused the removal of the children from the court’s jurisdiction, the court stated that it would issue a warrant for her arrest and appearance at a contempt hearing. - Father could appear at the September 24 hearing by telephone or video conference.

The temporary restraining order was set to expire on September 24, 2021, at 5:00 p.m., unless extended for good cause. The order did not finally decide whether the children had been wrongfully removed or whether they must be returned to Mexico.