McIntyre v. Smith

Background

Delaney Rae McIntyre filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. She alleged that Tommy Pharr Smith, III, and Shemekia Jackson wrongfully removed or retained N.G.F.S., McIntyre and Smith’s biological child. McIntyre alleged that the child had lived with her in Manitoba, Canada, since birth and that she had custody under Manitoba law. She asserted that the respondents and the child were residing in Minnesota.

McIntyre asked for an emergency order without advance notice to the respondents. She sought a warrant for the child’s seizure and an order giving her physical custody of the child in Canada while the case was pending. Alternatively, she asked the court to prohibit the respondents from removing the child from Minnesota. She also requested a stay of custody proceedings in other United States courts.

Court’s analysis

The court applied the four factors used for temporary restraining orders: likelihood of success on the merits, irreparable harm, the balance of harms, and the public interest. The court concluded that McIntyre had shown a likelihood of success because, based on her allegations about the child’s residence and custody under Canadian law, the respondents’ retention of the child was likely wrongful under the Hague Convention.

The court also found a real and immediate risk of irreparable harm. It noted McIntyre’s allegations that she had lost custody and contact with the child and that the respondents had previously taken the child temporarily to Tennessee. Although the court did not conclusively determine that the earlier departure was an attempt to flee, it found that the respondents were willing and able to leave the jurisdiction with the child and that notice of the case could prompt them to do so.

The court determined that preventing the respondents from leaving Minnesota with the child would impose no significant hardship on them, while McIntyre could face substantial difficulty locating the child and pursuing the case if the child were taken elsewhere. The court also found that the public interest favored preventing the child’s removal because that was the less drastic measure and would maintain the existing situation. The court waived the bond requirement because it found no reason to believe the order would cause the respondents financial harm.

Order

The court granted McIntyre’s ex parte motion for an accelerated hearing and temporary restraining order as follows:

- The respondents could not remove N.G.F.S. from the court’s jurisdiction while the case was pending. - Any pending United States proceedings concerning the child’s custody and care were stayed under Article 16 of the Hague Convention. - The respondents had to appear with N.G.F.S. before the court on October 20, 2021, for an initial show-cause and scheduling hearing. The hearing would allow them to confirm that the child was physically within the court’s jurisdiction and would allow the court to set an expedited evidentiary hearing on McIntyre’s petition for the child’s return. - If the respondents failed to appear with the child or removed the child from the court’s jurisdiction, the court stated that it would issue a warrant for their arrest and require them to appear for a contempt hearing. - McIntyre had to immediately serve the order, the verified petition, and the supporting exhibits on the respondents.

The temporary restraining order was set to expire 14 days after issuance unless the court extended it for good cause. Judge Wilhelmina M. Wright signed the order on October 7, 2021. The order addressed temporary protective relief and did not finally resolve whether the child had to be returned under the Hague Convention.