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Mendoza v. Pascual

United States District Court, S.D. Georgia

April 24, 2015

JUANA EGDA PACHECO MENDOZA, Plaintiff/Petitioner,
v.
REY DAVID MORENO PASCUAL, Defendant/Respondent.

TEMPORARY RESTRAINING ORDER

LISA GODBEY WOOD, Chief District Judge.

Petitioner Juana Egda Pacheco Mendoza alleges that her husband, Respondent Rey David Moreno Pascual, has wrongfully retained their minor child, L.D.M., in Statesboro, Georgia and will not return L.D.M. to her in Mexico per the parties' agreement. Petitioner has filed a "Petition Under the Hague Convention Seeking Return of the Child to Petitioner in Mexico" (Dkt. no. 1), along with a Motion for an Ex Parte Temporary Restraining Order (Dkt. no. 4) that would enjoin Respondent from allowing L.D.M. to be removed from this Court's jurisdiction pending a hearing on Petitioner's request for a preliminary injunction. For the reasons stated below, Petitioner's ex parte request for the temporary restraining order is GRANTED. Respondent is hereby enjoined from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction on May 6, 2015 at 3:30 p.m. at the United States District Court for the Southern District of Georgia in Statesboro, Georgia. Furthermore, Respondent is hereby DIRECTED to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name.

This Order is not a decision on the merits. Instead, the Court addresses only the precise question before it: whether Petitioner is entitled to the extraordinary remedy of an ex parte temporary restraining order. Because Petitioner has shown that she will likely suffer irreparable harm without a temporary restraining order, the Court issues an injunction preventing Respondent from removing L.D.M. from the Court's jurisdiction for the limited period of time between today's ex parte hearing and the full hearing on Plaintiff's motion for a preliminary injunction on May 6, 2015, at which all parties will have an opportunity to be heard.

In ruling on Plaintiff's motion for a temporary restraining order, the Court relies upon the following findings of fact and conclusions of law.

FINDINGS OF FACT[1]

1. Petitioner is L.D.M.'s mother, and Respondent is his father. Dkt. no. 1 ("Petition"), ¶ 7.

2. Petitioner and Respondent are both citizens of Mexico. Id. ¶ 8.

3. Petitioner and Respondent were married in Oaxaca, Mexico, and are still married. Id. ¶ 9; Dkt. no. 1-3 (Marriage Certificate)

4. In addition to L.D.M., Petitioner and Respondent have two other children, both of whom reside with Petitioner in Mexico. Petition ¶ 10.

5. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Id. ¶¶ 11-13.

6. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. Id. ¶ 14; Dkt. no. 1-4 (Birth Certificate)

7. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010, Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. Petition ¶ 16; Dkt. no. 1-5 (Notarized agreement bearing Respondent's signature).

8. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Petition ¶ 17.

9. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. Id. ¶¶ 18, 20.

10. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner has provided financial and other support for L.D.M. Id. ¶¶ 19, 21.

11. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. Id. ¶¶ 23-24.

12. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. Id. ¶ 25.

13. On March 15, 2014, L.D.M. flew from Mexico to the United States. Id. ¶ 26.

14. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. Petitioner agreed. Id. ¶ 27.

15. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Id. ¶¶ 29-30.

16. Petitioner believes that Respondent's girlfriend or sister cares for L.D.M. during the week while Respondent works. Id. ¶ 34.

17. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned ...


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