Cuenca Figueredo v. Rojas

Filing 5

ORDER granting in part #4 Petitioner's Ex Parte Motion for Temporary Restraining Order and Motion for Preliminary Injunction; setting hearing for 12/1/2022 at 2:00 p.m. before the undersigned in Jacksonville Courtroom 10D. See Order for details. Signed by Judge Timothy J. Corrigan on 11/21/2022. (CKM)

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 1 of 10 PageID 210

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARLOS ALBERTO CUENCA
FIGUEREDO,
Petitioner,
v.

Case No. 3:22-cv-1268-TJC-LLL

YAURI DEL CARMEN ROJAS,
Respondent.
TEMPORARY RESTRAINING ORDER
This case is before the Court on Petitioner Carlos Alberto Cuenca
Figueredo’s Ex Parte Motion for Temporary Restraining Order and Motion for
Preliminary Injunction. (Doc. 4). On November 15, 2022, Petitioner filed his
Verified Petition, Pursuant to the Hague Convention, for Return of Child to the
Country of Habitual Residence. 1 (Doc. 1). In the Verified Petition, Petitioner
asserts that his minor child, C.R., is being wrongfully retained in Orange Park,
Florida, within the Middle District of Florida, by C.R.’s mother (Respondent).
See (Doc. 1 at 1–4). Petitioner now asks the Court to enter an ex parte

Petitioner filed his Verified Petition pursuant to the Convention on the
Civil Aspects of International Child Abduction (“the Hague Convention”), Oct.
25, 1980, T.I.A.S. No. 11670, as implemented by the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq. ICARA was
previously located at 42 U.S.C. § 11601.
1

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 2 of 10 PageID 211

temporary restraining order preventing Respondent from removing C.R. from
the Court’s jurisdiction, requiring Respondent to surrender her and C.R.’s
travel documents, and requiring Respondent to provide Petitioner and the
Court with C.R.’s whereabouts and current contact information. (Doc. 4 at 14).
I.

TEMPORARY RESTRAINING ORDER STANDARD
For a court to grant injunctive relief, a movant must show: (1) the movant

has a substantial likelihood of success on the merits; (2) irreparable injury will
be suffered if the injunction does not issue; (3) the threatened injury to the
movant outweighs whatever damage the proposed injunction will cause the
opposing party; and (4) that the proposed injunction would not be adverse to the
public interest. All Care Nursing Serv. v. Bethesda Memorial Hosp., Inc., 887
F.2d 1535, 1537 (11th Cir. 1989); Gross v. Barnett Banks, Inc., 934 F. Supp.
1340, 1347 (M.D. Fla. 1995). It is within the Court’s discretion whether to grant
injunctive relief. All Care Nursing Serv., 887 F.2d at 1537.
A court may, as Petitioner requests here, issue a temporary restraining
order without notice to the adverse party, but only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the
adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it
should not be required.

2

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 3 of 10 PageID 212

FED. R. CIV. P. 65(b)(1)(A)–(B). The Court finds that Petitioner has met the
requirements for a temporary restraining order.
A.

Petitioner is Likely to Succeed on the Merits of his Hague
Convention Claim

The Hague convention
applies to children under sixteen years of age who are
“habitually resident” in a contracting state
(Convention, Art. 4) and are “wrongfully removed” to
another contracting state (Convention, Art. 1). A child
is “wrongfully removed” when (a) the removal “is in
breach of rights of custody attributed to a
person . . . under the law of the State in which the
child was habitually resident,” and (b) at the time of
removal the rights of custody “were actually exercised”
by the person having those rights (Convention, Art. 3).
The term “rights of custody” includes “rights relating
to the care of the person of the child and, in particular,
the right to determine the child’s place of residence”
(Convention, Art. 5).
Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir. 2014). Thus, Petitioner
must ultimately show by a preponderance of the evidence (1) that C.R. was a
habitual resident of another country—in this case, Venezuela; (2) C.R.’s
removal from Venezuela violated Petitioner’s custodial rights, which Petitioner
was exercising at the time of C.R.’s removal; and (3) C.R. is less than sixteen
years old. See id. Petitioner meets his burden on all three points.

3

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 4 of 10 PageID 213

1.

C.R.’s habitual residence

In the Verified Petition, Petitioner affirms that C.R. was born in
Venezuela. (Doc. 1 at 2); (Doc. 1-2 at 10) (English translation of C.R.’s redacted
birth certificate). Petitioner states that C.R. has lived in Venezuela for his
entire life. (Doc. 1 at 2, 9). “‘Habitual residence’ is generally defined as ‘the place
where [the child] has been physically present for an amount of time sufficient
for acclimatization and which has a degree of settled purpose from the child’s
perspective.’” Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1360
(M.D. Fla. 2002) (quoting Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1284
(S.D. Fla. 1999)). Based on Petitioner’s representations in the Verified Petition
and the supporting record evidence, the Court is satisfied for now that C.R.’s
habitual residence, prior to Respondent bringing him to the United States, was
Venezuela. See (Doc. 1 at 9); (Doc. 1-2 at 9–10).
2.

C.R.’s wrongful removal from Venezuela

Petitioner must also show that C.R.’s removal from Venezuela violated
Petitioner’s custody rights and that he was exercising those rights prior to
C.R.’s removal. In his Verified Petition, Petitioner affirms that he and
Respondent shared custody of C.R. pursuant to a Venezuelan court order. (Doc.
1 at 10). Respondent initially had custody of C.R., with Petitioner being allowed
“liberal visitation.” Id. Petitioner and Respondent “later consensually modified
that arrangement to provide for their joint custody of [C.R.]” under Venezuelan
4

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 5 of 10 PageID 214

law. Id. Petitioner argues that Respondent relocating C.R. to the United States,
without first informing Petitioner or providing an address, violated his
custodial rights. (Doc. 1 at 10); cf. (Doc. 1-3 at 56–65) (Translated Venezuelan
court documents indicating that C.R.’s removal from Venezuela violated
Petitioner’s custodial rights and granting Petitioner full custody of C.R.).
Considering Petitioner’s sworn statements in his Verified Petition, the
attached Venezuelan court documents indicating that C.R.’s removal violated
Petitioner’s custodial rights, and the circumstances of Respondent’s unilateral
relocation to the United States, providing no information for Petitioner to find
his son, the Court finds that Petitioner has met his burden. See id.; Uribe v.
Luque, No. 8:21-CV-934-SDM-CPT, 2021 WL 3518154, at *3 (M.D. Fla. May 3,
2021) (determining that one parent unilaterally removing a child from
Venezuela violates the other parent’s custodial rights as a matter of Venezuelan
law).
As for whether Petitioner was actually exercising his custodial rights,
Petitioner also meets this burden. In his Verified Petition, Petitioner explains
that Petitioner had custody of C.R. “during the days” and Respondent had
custody “at night.” (Doc. 1 at 4–5). From March to November 2020, when
Respondent was abroad and unable to return to Venezuela due to Covid-19
restrictions, C.R. “lived solely with [Petitioner.]” Id. at 5. Upon her return in
November 2020, Petitioner and Respondent “resumed their joint custody of
5

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 6 of 10 PageID 215

[C.R.]” Id. Further, after Respondent relocated C.R. to the United States,
Petitioner attempted to continue exercising custody: traveling to the United
States to locate and return C.R.; initiating legal proceedings in Venezuela to
regain custody of C.R.; and then filing his Verified Petition. Id.; (Doc. 1-3 at 33–
65); see Uribe, 2021 WL 3518154, at *3 (finding that regular visits, financial
contributions, or pursuing legal custody can constitute actual exercise of
custody). Accordingly, the Court finds Petitioner has met his burden to show
C.R.’s removal from Venezuela violated Petitioner’s custody rights and that he
was actually exercising those rights prior to C.R.’s removal.
3.

C.R.’s age

Finally, Petitioner must show that C.R. is less than sixteen years old. In
his Verified Petition, Petitioner states that C.R. is seven years old. (Doc. 1 at 1).
Further, Petitioner provides a copy of C.R.’s birth certificate, indicating that he
was born in 2015. (Doc. 1-2 at 10). Accordingly, Petitioner has met his burden
here.
B.

Irreparable Injury, Balance of Harms, and the Public
Interest

The Court also finds a strong likelihood that Respondent will take C.R.
out of this Court’s jurisdiction based on Respondent’s past conduct in
surreptitiously leaving Venezuela and refusing to disclose her whereabouts or
provide Petitioner a means to find C.R. See (Doc. 1 at 2). Should Respondent

6

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 7 of 10 PageID 216

abscond again with C.R., Petitioner may not be able to locate his son, which
would perpetuate the ongoing injury. See Stirk v. Lopez, No. 8:20-CV-2894-T23AAS, 2020 WL 10692527, at *2 (M.D. Fla. Dec. 8, 2020) (finding that a
respondent thwarting the purposes of the Hague Convention and ICARA by
fleeing a court’s jurisdiction constituted irreparable harm) (citations omitted).
Weighing these potential and ongoing harms against any damage the
proposed injunction will cause Respondent, the balance lies with Petitioner.
Any temporary travel restrictions on Respondent and C.R. until the Court can
adjudicate the Petition are far outweighed by the harm Petitioner faces if C.R.
is wrongfully relocated again and Petitioner cannot find him. See id. Rather,
the requested injunctive relief would simply maintain the status quo while this
case proceeds.
Finally, the proposed injunctive relief would not harm the public
interest—to the contrary, maintaining the status quo to properly adjudicate
this dispute would further the purposes of the Hague Convention and ICARA.
Cf. Cunningham v. Cunningham, 237 F. Supp. 3d 1246, 1262 (M.D. Fla.), aff’d,
697 F. App’x 635 (11th Cir. 2017) (“The purpose of the Hague Convention is ‘to
protect children internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure their prompt return
to the State of their habitual residence, as well as to secure protection for rights
of access.’”) (citation omitted).
7

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 8 of 10 PageID 217

As this case progresses, Respondent will be given the opportunity to tell
her side of the story. However, considering the history of this case, including
Respondent’s past relocation, her apparent disregard of a Venezuelan court
order granting Petitioner custody of C.R., the harm that will occur if
Respondent absconds again, and the suitability of maintaining the status quo
while this case proceeds, the Court finds that the requested temporary
restraining order is warranted.
Accordingly, it is hereby
ORDERED:
1.

Petitioner’s Ex Parte Motion for Temporary Restraining Order and

Motion for Preliminary Injunction (Doc. 4) is GRANTED to the extent set
forth below.
2.

Respondent, Yauri Del Carmen Rojas, is hereby ENJOINED and

RESTRAINED from removing or sending C.R. outside the jurisdiction of this
Court during the pendency of this case.
3.

The United States Marshal shall serve upon Respondent a copy of

this Temporary Restraining Order, the Verified Petition (Doc. 1), and all other
papers that have been filed in this action. In serving these proceedings, the
United States Marshal shall confiscate Respondent and C.R.’s passports, visas,
and any other travel related documents for deposit in the registry of the Court.

8

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 9 of 10 PageID 218

If the United States Marshal is unable to serve Respondent in accordance with
this paragraph, the United States Marshal shall promptly notify the Court.
4.

Upon receipt of this Order, Respondent shall inform the Court and

Petitioner of C.R.’s current address and a phone number at which C.R. can be
reached for the duration of this case. Respondent may contact the Court by
calling the chambers of the undersigned at 904-549-1303.
5.

Respondent shall not hinder or prevent C.R. from making telephone

calls or conducting video conferences with Petitioner during the pendency of
this case.
6.

Respondent shall not move C.R.’s residence without first obtaining

permission from the Court during the pendency of this case.
7.

A hearing is hereby SET for December 1, 2022 at 2:00 p.m. before

the undersigned in the United States Courthouse Courtroom 10D, Tenth Floor,
300 North Hogan Street, Jacksonville, Florida. At the hearing, the Court will
determine whether the Temporary Restraining Order should be converted to a
preliminary injunction. Respondent must attend the hearing and is
encouraged to retain a lawyer to represent her in these proceedings
and at the hearing.

9

Case 3:22-cv-01268-TJC-LLL Document 5 Filed 11/21/22 Page 10 of 10 PageID 219

DONE AND ORDERED in Jacksonville, Florida the 21st day of
November, 2022 at 3:15 p.m.

rmv/ckm
Copies:
United States Marshal
Counsel of record

10