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Mendoza v. Pascual

United States District Court, Southern District of Georgia, Stateboro Division

May 7, 2015

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

PRELIMINARY INJUNCTION

LISA GODBEY WOOD, CHIEF 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. Presently before the Court is Petitioner's request for a preliminary injunction enjoining Respondent from removing L.D.M. from the Southern District of Georgia, Statesboro Division's jurisdiction pending the resolution of her Hague Convention Petition. Dkt. no. 8. This Court's findings of fact and conclusions of law, discussed below, compel the Court to GRANT Petitioner's request for preliminary injunctive relief: Respondent is enjoined from removing or permitting L.D.M. to be removed from those counties constituting the Statesboro Division of the Southern District of Georgia's jurisdictional bounds, which include the counties of Bulloch, Candler, Emanuel, Evans, Jenkins, Screven, Tattnall, and Toombs. The injunction does not restrain Respondent himself from leaving the counties of the Statesboro Division. This injunction shall remain in effect until the Petitioner's Hague Convention Petition is resolved.

This Order is not a decision on the merits. Instead, the Court addresses only the precise concern Petitioner has presented: whether there should be some safeguard in place to prevent Respondent from removing L.D.M. from this Court's jurisdiction until the Court can consider the merits of Petitioner's Hague Convention Petition. This Court cannot issue an injunction unless Petitioner shows "that [she] is likely to suffer irreparable harm in the absence of preliminary relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As discussed below, Petitioner has made that showing.

PROCEDURAL BACKGROUND

Petitioner filed a "Petition Under the Hague Convention Seeking Return of the Child to Petitioner in Mexico" on April 16, 2015. Dkt. no. 1. On April 20, Petitioner filed a Motion seeking both an ex parte temporary restraining order and preliminary injunctive relief enjoining Respondent from removing L.D.M. from this Court's jurisdiction. Dkt. no. 4. On April 24, 2015, the Court held an ex parte hearing on Petitioner's Motion for an Ex Parte Restraining Order. The Court granted Petitioner's request for a temporary restraining order, and enjoined Respondent from removing L.D.M. from the Southern District of Georgia, Statesboro Division's jurisdiction until the Court heard all parties at a full hearing on Petitioner's motion for preliminary injunctive relief. Dkt. no. 24. The Court scheduled that hearing for May 6, 2015. Id.

A few days before the May 6, 2015 hearing, Petitioner discovered that she would not be able to obtain a visa or other formal permission to enter the United States to testify in any hearings related to her request for a preliminary injunction or her Hague Convention petition. On May 1, 2015, she moved to appear at the May 6, 2015 hearing by videoconference from Mexico. Dkt. no. 18. Respondent did not oppose or otherwise respond to Petitioner's motion-perhaps because of the short amount of time between the motion and the hearing, which could not be rescheduled or delayed because the temporary restraining order was due to expire. See id. The Court provisionally granted Petitioner's motion to testify by videoconference, noting that Respondent would be given the opportunity to oppose Petitioner's remote testimony before it was heard. Dkt. no. 20. The Court also directed Petitioner to supplement the record with affidavits showing that certain logistical and procedural safeguards would ensure Petitioner's uninterrupted and adequately sworn testimony, which she has provided. See Dkt. no. 21.

PETITIONER'S TESTIMONY BY VIDEOCONFERENCE

Per the Court's May 5, 2015 Order provisionally granting Petitioner's motion to attend the May 6, 2015 hearing by videoconference (Dkt. no. 20), Respondent had the opportunity to orally oppose Petitioner's remote testimony at that hearing. Respondent did not oppose Petitioner's remote testimony, which the Court then permitted pursuant to Federal Rule of Civil Procedure 43(a) and as further outlined in the Court's prior Order on that matter (Dkt. no. 20).

FINDINGS OF FACT

The Court notes that many of the facts discussed below were previously outlined in the Court's April 24 Order granting Petitioner's request for a temporary restraining order. See Dkt. no. 13. These facts are nevertheless recounted here because the Court is considering Petitioner's motion for a preliminary injunction anew, and those facts are further supplemented by Petitioner's remote testimony and Respondent's live testimony at the May 6, 2015 hearing.

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 one of her other two children went to Mexico. At the preliminary injunction hearing, Petitioner testified that her third child had already returned to Mexico before the rest of the family. 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.'s permanent residence was with Petitioner in Mexico. During this time, Petitioner provided financial and other support for L.D.M. Id. ¶¶ 19, 21. At the hearing, Petitioner testified that once during this time period L.D.M. visited Respondent for about six months.

11. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him again 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 ...


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