Rodriguez v. Noriega

Background

Jesus Rafael Roman Rodriguez, identified in the opinion as the Father, filed a verified petition seeking the return of his minor child, R.R.S. He alleged that Maria Luisa Sanchez Noriega, identified as the Mother, removed R.R.S. from Mexico in May 2021 and later moved with the child from Texas to Minnesota. Father alleged that Mother and R.R.S. were residing in Saint Paul, Minnesota, and that he had not seen R.R.S. in person since May 8, 2021, although they had weekly video calls.

Father brought the return petition under the Convention on the Civil Aspects of International Child Abduction, the International Child Abduction Remedies Act, and Minnesota’s Uniform Child Custody Jurisdiction and Enforcement Act. He also filed an emergency request for a temporary restraining order under Federal Rule of Civil Procedure 65(b). The principal requested restriction was an order preventing Mother from removing R.R.S. from Minnesota while the return petition proceeded on an expedited basis. The court held an ex parte hearing on January 11, 2024, meaning a hearing conducted without the other side present.

Legal standard

The court applied the four factors used for temporary restraining orders and preliminary injunctions in the Eighth Circuit: the likelihood that the requesting party will succeed on the merits, the threat of irreparable harm without relief, the balance of harms to the parties, and the public interest.

Because Father sought an order without advance notice to Mother, Rule 65(b) also required specific facts showing that immediate and irreparable harm would occur before Mother could be heard, as well as a written certification from Father’s attorney concerning notice efforts and why notice should not be required. An order issued without notice generally expires within 14 days unless extended for good cause.

Court’s analysis

The court found that Father was likely to succeed on his return petition. Under the international child-abduction treaty, he had to show that Mexico was R.R.S.’s usual home before the removal, that the removal violated his custody rights under Mexican law, and that he was exercising those rights before the removal.

The court concluded that Father had provided evidence supporting each requirement. The child was born in Mexico in 2018 and allegedly lived there until the 2021 removal. Father submitted the child’s Mexican birth certificate and records concerning daycare and school enrollment in Mexico. The court also relied on provisions of the Sinaloa family code stating that parental authority is exercised by the parents and that, when parents separate, both continue to carry out their parental duties. Father alleged that he and Mother had shared custody and access to R.R.S. and that he exercised parenting time from Mondays through Saturdays, with his parents caring for the child while he worked.

The court found irreparable harm because Mother might move R.R.S. out of Minnesota if she received advance notice of the requested order. The court considered Father’s allegations that Mother had previously moved the child from Mexico to Texas and then to Minnesota, had done so after saying she would not remove the child without his permission, and had threatened to cut off Father’s contact if he continued seeking information about their location. The court reasoned that another move could make the child difficult to locate and force Father to begin the return process again in another jurisdiction.

The court found that the balance of harms favored the order. The restriction would last no more than 14 days, Mother would be prohibited only from removing R.R.S. from Minnesota, and Mother could otherwise travel, including to Wisconsin. The public interest also favored the order because the treaty and federal law recognize the harm caused by international child abduction and favor deciding custody rights in the child’s usual country of residence.

The court also determined that Father was not required to provide security, or a bond to cover possible losses caused by an improper injunction. The court found that Mother was unlikely to suffer financial harm from the temporary order.

Order

The court GRANTED IN PART Father’s Request for Temporary Injunction. It ordered that R.R.S. could not be removed from Minnesota for 14 days after the order’s issuance. It directed the United States Marshal to serve Mother with the legal papers, stayed any United States proceedings concerning R.R.S.’s custody and care, and ordered Father and Mother to appear for an initial show-cause and scheduling hearing on January 24, 2024. That hearing was intended to set an expedited evidentiary hearing on the return petition’s merits.

The court denied Father’s request that a warrant for Mother’s arrest be served immediately. It stated that a warrant could be served if Mother violated the order by removing R.R.S. from Minnesota during the 14-day period. The court also denied Father’s request that Mother surrender her and R.R.S.’s travel documents. Mother was not ordered to remain in Minnesota, but she could not remove R.R.S. from the state during the order’s effective period. The temporary restraining order would expire within 14 days unless the court extended it for good cause.