Gayle Sawyers v. Wellington

Background

Le-Mayne De-Niro Gayle Sawyers, identified in the order as “Mother,” filed an ex parte expedited motion for a temporary restraining order under Article 7(b) of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–9011. The respondents were Fitzroy Alexander Wellington, identified as “Father,” and Deneese Wellington, identified as “Father’s Wife.”

The court explained that the Hague Convention seeks the prompt return of children wrongfully removed from or retained outside a contracting state. It also explained that a Hague Convention proceeding addresses whether the child should be returned to the country of habitual residence, not which parent should win the underlying custody dispute.

Court’s analysis

The court considered the four factors for emergency injunctive relief: likely success on the merits, irreparable harm without an order, the balance of harms, and the public interest. It found that allowing the respondents to flee with the child would cause irreparable harm. It also found that the possible harm to the respondents was minimal compared with the potential harm to Mother or the child, because the temporary order would not determine custody rights.

Based on the record at that stage, the court found that Mother had clearly shown a likelihood of success. The court stated that her evidence established that the child’s habitual residence was Jamaica immediately before the alleged wrongful retention, that Mother had custody rights under Jamaican law, and that she was exercising those rights and would have continued doing so but for the alleged retention in the United States. The court also found that the public interest supported the temporary order.

Ruling

Judge Kenneth Karas granted Mother’s ex parte expedited motion for a temporary restraining order. The order prohibited Fitzroy Alexander Wellington and Deneese Wellington, or anyone acting on their behalf, from removing J.J.W. from New York pending the preliminary-injunction hearing. The respondents were ordered to appear with the child at that hearing and show cause why they should not be barred from removing the child from the jurisdiction until the litigation concluded.

The court declined to require Mother to post a bond. It also ordered the United States Marshal to personally serve the respondents with the summons, amended verified expedited petition, temporary restraining order, and other filed documents. The respondents were ordered to respond in writing to the verified petition ten days from the hearing date.

The opinion text supplied here contains unreadable portions where the hearing date and some scheduling details appear. The order granted temporary relief; it did not issue a permanent custody determination or finally resolve the Hague Convention petition.