United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
TEMPORARY RETRAINING ORDER RE: DKT. NO. 6
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Artemiz Adkins' Motion for
a Temporary Restraining Order (“TRO”) enjoining
Respondent Garrett Adkins from violating the Hague Convention
on the Civil Aspects of International Child Abduction
(“Convention”), as implemented by the
International Child Abduction Remedies Act
(“ICARA”), pending a preliminary injunction
hearing. See Dkt. No. 6. For the reasons detailed
below, the Court GRANTS IN PART and
DENIES IN PART the motion.
who resides in Switzerland, seeks the return of her and
Respondent's four-year-old daughter, A.F.A. See
Dkt. No. 1. According to Petitioner's Verified Complaint
and Petition for Return of Child Under 16 Years Old,
Petitioner and Respondent agreed that, following their
separation in December 2018, A.F.A. would continue to live in
Switzerland with Petitioner and A.F.A. would begin
kindergarten there. Id. ¶ 13. Petitioner
alleges that despite this agreement, Respondent, who now
resides in California, wrongfully retained their daughter
during one of A.F.A.'s trips to the United States to
visit Respondent in July 2019. See Dkt. No. 1 at
accompanying TRO motion, Petitioner requests several forms of
relief, including (1) ordering the immediate return of A.F.A.
to Switzerland; or in the alternative, (2) enjoining
Respondent from removing A.F.A. from the jurisdiction of the
Court pending an expedited hearing on preliminary injunction
and the merits of this action. See Dkt. No. 6 at 2.
when the motion was filed Petitioner had not provided notice
to Respondent of the motion or otherwise complied with
Federal Rule of Civil Procedure 65, the Court directed (1)
Petitioner to serve the motion, its supporting documents, and
the Court's order on Respondent; and (2) Respondent to
file an expedited response. See Dkt. No. 16.
Petitioner served Respondent on September 9, 2019.
See Dkt. Nos. 17-22. Respondent, in turn, filed his
opposition to the motion on September 11, 2019. See
Dkt. Nos. 23, 24. In his opposition, Respondent contends that
A.F.A. has split time equally between California and
Switzerland since the parties' separation; he is
domiciled in Petaluma, California; and he will stipulate to
an order that he not remove A.F.A. from California during the
pendency of this action. See Dkt. No. 23 at
¶¶ 6, 10; id. at 6 (“Response to
exercising jurisdiction under ICARA “may take or cause
to be taken measures under Federal or State law, as
appropriate, to protect the well-being of the child involved
or to prevent the child's further removal or concealment
before the final disposition of the petition.” 22
U.S.C. § 9004(a). That authority extends to issuing a
temporary restraining order where the requirements of Federal
Rule of Civil Procedure 65(b) are satisfied. Under Rule
65(b), a party seeking a temporary restraining order must
establish: (1) a likelihood of success on the merits; (2) a
likelihood of irreparable injury if the requested relief is
not granted; (3) that a balancing of the hardships weighs in
its favor; and (4) that the requested relief will advance the
public interest. See Winter v. Natural Res. Def.
Council, 555 U.S. 7, 20 (2008).
Respondent has conceded that an order enjoining him from
removing A.F.A. from the jurisdiction of this Court would be
appropriate. See Dkt. No. 23 at 6 (“Response
to Orders Requested”). The Court agrees that such
minimally burdensome relief ensures that Petitioner's
Hague Convention claim and her underlying custody rights may
be meaningfully adjudicated. Nevertheless, the Court does not
find, based on the record before it, that Petitioner has
adequately shown a likelihood of irreparable injury if A.F.A.
is not immediately returned to Switzerland pending a hearing
on a preliminary injunction and the merits of the Verified
Complaint. Respondent currently lives in Petaluma,
California, where he has substantial family ties,
see Dkt. No. 23 at ¶ 6, and has complied with
all Court orders and court-imposed deadlines to date.
Petitioner has not alleged any facts to suggest that
Respondent has taken-or will take-any effort to conceal
A.F.A.'s whereabouts or otherwise harm her well-being
during the pendency of this action.
the Court ORDERS as follows:
• Petitioner's Motion for a Temporary Restraining
Order is hereby GRANTED IN PART such that
Respondent Garrett Adkins is prohibited from directly or
indirectly removing A.F.A. from the Northern District of
California, until further order of the Court;
• The Court finds that there is no reasonable likelihood
of harm to Respondent from being wrongfully enjoined, and
therefore orders that Petitioner is not required to give
security pursuant to Federal Rule of Civil Procedure 65(c);
• Respondent is ORDERED to show cause
why the relief requested in the Verified Complaint and
Petition, Dkt. No. 1, including the return of the
parties' minor child to Switzerland, should not be
granted. Respondent shall file his response to ...