Calixto v. Lesmes
Filing
9
ORDER granting (Doc. # 2 ) Motion for temporary restraining order. Respondent is hereby prohibited from removing the child from the jurisdiction of this Court pending a hearing on the merits of the Verified Petition. Respondent shall surrender to and the United States Marshal is directed to secure any and all passports, visas, or other travel documents of the child, M.A.Y., and of the Respondent. This matter is hereby referred to Magistrate Judge Julie S. Sneed for an evidentiary hearing on the Verified Petition. (Doc. # 6 ). Petitioner is directed to immediately serve Respondent with a copy of this Order. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 9/5/2017. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHAN SEBASTIAN ALZATE CALIXTO
acting on behalf of infant child,
M.A.Y.,
Petitioner,
v.
Case No. 8:17-cv-2100-T-33JSS
HADYLLE YUSUF LESMES,
Respondent.
______________________________/
ORDER GRANTING TEMPORARY RESTRAINING ORDER UNDER THE HAGUE
CONVENTION
This
Petitioner
cause
Johan
comes
before
Sebastian
the
Alzate
Court
pursuant
to
Calixto’s
Motion
For
Temporary Restraining Order (Doc. # 2), which was filed on
September 1, 2017. The Court grants the Motion as set forth
below.
Discussion
Petitioner initiated this action on September 1, 2017,
by filing a Verified Petition for Return of the Child to
Colombia (Doc. # 1).
filed
an
Amended
At the Court’s request, Petitioner
Verified
Petition
with
confidential
information redacted. (Doc. # 6). Among other allegations,
Petitioner claims that the mother of his child, Hadylle
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Yusuf Lesmes, the Respondent, has wrongfully retained their
five-year
old
daughter
November 24, 2016.
in
Manatee
County,
Florida
since
It should be noted that Petitioner gave
his permission for Respondent to travel to Florida with the
child, but he only authorized Respondent to stay in Florida
with the child for a one-year period.
That one-year period
has now expired and Petitioner demands return of the child
to Colombia.
Petitioner does not know the whereabouts of
the Respondent or the child, but believes that they are
located in Manatee County, Florida.
Petitioner has filed
the Motion and Petition on an ex parte basis.
Petitioner maintains that the Convention on the Civil
Aspects of International Child Abduction, Done at the Hague
on October 20, 1980 and the International Child Abduction
Remedies Act, 22 U.S.C. § 9001, apply to this situation.
Petitioner
requests
Restraining
Order
that
the
barring
Court
enter
Respondent
from
a
Temporary
leaving
this
Court’s jurisdiction with the child until a hearing can take
place
on
Colombia.
his
Verified
Petitioner
Petition
also
to
requests
return
that
the
child
to
Respondent
be
required to surrender all relevant travel documents pending
final adjudication of the Verified Petition.
2
Pursuant to Rule 65 of the Federal Rules of Civil
Procedure, the Court may enter a preliminary injunction or
temporary
restraining
restraining
order,
substantial
order.
the
likelihood
To
movant
of
obtain
must
success
a
temporary
demonstrate
on
the
“(1)
merits;
a
(2)
irreparable injury will be suffered if the relief is not
granted; (3) that the threatened injury outweighs the harm
the relief would inflict on the non-movant; and (4) that the
entry
of
the
relief
would
serve
the
public
interest.”
Schiavo v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
To obtain ex parte relief, a party must strictly comply
with
these
requirements.
See
Emerging
Vision,
Inc.
v.
Glachman, No. 10-80734, 2010 U.S. Dist. LEXIS 81165 (S.D.
Fla. June 29, 2010); Levine v. Comcoa Ltd., 70 F.3d 1191,
1194 (11th Cir. 1995)(“An ex parte temporary restraining
order is an extreme remedy to be used only with the utmost
caution.”).
Based on the record, the Court preliminarily finds that
Petitioner will suffer irreparable harm unless this Order is
granted.
from
Given that Respondent brought the child to Florida
Colombia,
and
has
refused
to
return
the
child
to
Colombia, there exists a clear risk that Respondent will
3
further secret the child and herself in violation of the
Hague
Convention,
the
ICARA,
and
other
applicable
law.
According to the Petition, Petitioner has rights of custody
with the child, Respondent wrongfully retained the child in
Florida, Respondent and the child are citizens of Colombia,
Colombia has been the habitual place of residence for the
child, and Respondent has prevented Petitioner from seeing
his child.
The Court accordingly finds that Petitioner has
shown that there is a substantial likelihood of success on
the merits.
In addition, the Court finds that the threatened injury
outweighs any harm the relief would inflict on Respondent,
because
this
Temporary
Restraining
maintaining the status quo.
address
whether
either
Order
is
simply
That is, this Order does not
party
should
have
custody over the child on a continuing basis.
access
to
or
This ex parte
and preliminary determination should not be construed as a
comment on the final disposition of the Petition.
Instead,
and as specified below, this Order requires Respondent to
remain in this district with the child until a hearing on
the merits of the Verified Petition can take place. Finally,
4
the Court determines that the issuance of this Temporary
Restraining Order will serve the public interest.
The Court having considered the pleadings and Motions
in
this
case,
and
pursuant
to
Federal
Rule
of
Civil
Procedure 65, GRANTS the request for a Temporary Restraining
Order as follows:
(1)
Respondent is hereby prohibited from removing the
child from the jurisdiction of this Court pending a hearing
on the merits of the Verified Petition, and no person acting
in concert or participating with Respondent shall take any
action to remove the child from the jurisdiction of this
Court pending a determination on the merits of the Verified
Petition to Return the Child to Colombia.
(2)
Respondent
shall
surrender
to
and
the
United
States Marshal is directed to secure any and all passports,
visas, or other travel documents of the child, M.A.Y., and
of the Respondent.
or
indirectly
Respondent is prohibited from directly
securing
substitute
travel
documents,
including a passport, for M.A.Y., or for Respondent pending
final adjudication of the Verified Petition.
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(3)
This matter is hereby referred to Magistrate Judge
Julie S. Sneed for an evidentiary hearing on the Verified
Petition. (Doc. # 6).
(4)
It is further ordered that Petitioner is directed
to immediately serve Respondent with a copy of this Order,
in accordance with the applicable law governing notice in
interstate
child
custody
proceedings
(see
22
U.S.C.
§
9003(c)) and file proof of service with the Court.
DONE and ORDERED in Chambers in Tampa, Florida, this
5th day of September, 2017.
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