Virginia Lawyers Weekly//August 16, 2023
Virginia Lawyers Weekly//August 16, 2023//
Where the father showed that the minor child was likely to be returned to Peru, where she lived before the mother brought her to the United States and refused to return her to Peru, the mother was enjoined from removing the child from Virginia until the petition to return was resolved.
In July 2012, minor L.V.Z.R. was born to petitioner Eloy Nicolás Zúñiga Cuidad and respondent Aida Steffani Lezama Reyes. L.V.Z.R. and both of her parents are Peruvian citizens and have resided in Lima from her birth until Reyes left Peru and brought L.V.Z.R. to the United States in September 2022. At that time, she informed Cuidad that neither of them would be returning to Peru.
In November 2022, petitioner completed an application to have L.V.Z.R. returned to Peru under the Hague Convention and the International Child Abduction Remedies Act. Petitioner has also retained pro bono counsel who filed a verified petition, initiating the instant matter. Currently pending before the court is petitioner’s motion, in which he requests the court to (among other things) enjoin respondent from removing L.V.Z.R. from the Commonwealth of Virginia.
To obtain a temporary restraining order, or TRO, a party must show (1) a likelihood of success on the merits of its claims; (2) a likelihood of irreparable harm in the absence of the requested relief; (3) that the balance of equities tips in its favor and (4) that an injunction is in the public interest.
Likelihood of success
To have L.V.Z.R. returned to Peru, petitioner would have to show that: (1) the child was removed from a country in which she was a habitual resident just before the removal; (2) the removal or retention breached established custody rights as defined by that country and (3) these custodial rights were exercised or would have been so exercised but for the removal.
After a review of the record, the court finds that petitioner has clearly demonstrated that he is likely to succeed on the merits. First — because it was the only place she had lived from her birth up to her removal and retention in the United States — L.V.Z.R.’s country of habitual residence is Peru. Second, under Peruvian law, petitioner has ne exeat rights which entitled him to prohibit respondent from bringing L.V.Z.R. to the United States. And third, petitioner was exercising his custodial rights and would have continued to do so but for respondent’s actions.
The verified petition alleges that, despite petitioner’s continuous attempts to exercise his custodial rights, respondent has already wrongfully retained L.V.Z.R. in the United States for close to a year. This raises concerns that, absent a court order forbidding it, respondent could move L.V.Z.R. away from this jurisdiction, further concealing their whereabouts. Such action would frustrate the goals of the Hague Convention and thwart this court’s ability to resolve the verified petition before it. For that reason, the court finds that petitioner would face irreparable harm if his request was to be denied.
Regarding the balancing of equities, petitioner is not seeking a permanent custody order from this court. And for good reason: “[T]he return remedy does not alter the pre-existing allocation of custody rights between parents; the Convention generally leaves ultimate custodial decisions to the courts of the country of habitual residence.” Both the instant motion and the underlying petition seek only the ability to determine custody in Peru.
For that reason, respondent does not stand to lose any parental rights, and thus the issuance of the sought-after injunction places no burden on her. Finally, since international abduction and wrongful retention of a child is harmful to his or her wellbeing, a TRO in this case will serve the public interest by protecting the child’s well-being.”
Finally, under Rule 65(c), the court would normally require a bond when granting a temporary restraining order. However, the court may choose not to impose such a requirement. And—considering the remoteness of any risk of harm to respondent (as well as petitioner’s financial circumstances)—the court will exercise its discretion to waive the bond obligation in this case.
Plaintiff’s motion for temporary restraining order granted.
Cuidad v. Reyes, Case No. 1:23-cv-926, July 24, 2023. EDVA at Alexandria (Nachmanoff). VLW 023-3-423. 6 pp.