Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Quintana Hernandez v. Garcia Ochoa

United States District Court, D. New Mexico

August 17, 2017

LUIS RENE QUINTANA HERNANDEZ, Plaintiff,
v.
MARTHA CATALINA GARCIA OCHOA, Defendant.

          MEMORANDUM OPINION AND TEMPORARY RESTRAINING ORDER

         This matter is before the Court on Plaintiff's Ex Parte Motion Under the Hague Convention for Entry of a TRO . . . and Federal Rule 65(b) Certificate of Counsel [Doc. 3]. As the title implies, the Plaintiff filed the motion ex parte; he has not yet served the Defendant. For the reasons explained below, the Court will grant the motion and enter a temporary restraining order preventing the Defendant, Martha Catalina Garcia Ochoa (“Ochoa”) from causing or permitting the Child at issue from leaving the District of New Mexico while the temporary restraining order is in effect.

         FACTUAL AND PROCEDURAL BACKGROUND

         Based on the facts alleged in the Verified Complaint [Doc. 1], which the Court accepts as true for the purposes of this motion only, the Court finds that Plaintiff Luis Rene Quintana Hernandez (“Hernandez”) and Ochoa were married in Mexico on May 15, 2009. [Doc. 1-6] On November 1, 2009, Ms. Ochoa gave birth to the Child at issue in this case in Mexico. [Doc. 1-3]. Mr. Hernandez and Ms. Ochoa entered into a “Voluntary Agreement of Divorce” on November 13, 2015. [Doc. 1-2 at 11 of 17] A Final Decree was entered and is dated December 1, 2015. [Doc. 1-2 at 10 of 17]. According to the Final Decree and the Voluntary Agreement of Divorce the parties agreed to shared custody of the Child in which the Mr. Hernandez has the Child every weekend from Friday at 1:00 p.m. to Sunday at 8:00 p.m. [Doc. 1-2 at 12 of 17]. The Agreement further provides that “the weekly schedule” for visitations “shall be strictly followed.” [Id.]

         On or about November 23, 2015, Ms. Ochoa informed Mr. Hernandez that she wanted to spend Thanksgiving with her daughters, from a previous marriage, in Albuquerque, New Mexico, and she wanted to take the Child with her. [Doc. 1-1 at 13 of 17]. Ms. Ochoa informed Mr. Hernandez that she and the Child would be returning to Mexico on November 30, 2015. [Id.]. With this understanding, Mr. Hernandez submitted a Form I-94 (Arrival/Departure Record) for the Child to temporarily travel to the United States with a return date of November 30, 2015. [Id.]

         On November 30, 2015, Mr. Hernandez filed a criminal complaint against Ms. Ochoa for her “unlawful removal from the country or abduction” of the Child. [Doc. 1-5 at 5 of 8]. In the Complaint Mr. Hernandez states that on November 28, 2015, he went for visitation with his son as the parties had agreed in their Voluntary Agreement of Divorce entered on November 13, 2015. [Id.] Mr. Hernandez was informed by his bother-in-law that Ms. Ochoa had “decided not to return to the country [Mexico] and to prevent our son … from returning to the country [Mexico]”. [Id.] Further, Mr. Hernandez averred that his brother-in-law informed him that Ms. Ochoa had “disposed of most of the home furniture, she sold it in order to leave the country, without intending to return and unlawfully abducting our son, ” [Id.] Mr. Hernandez provided the police with the above-referenced facts under penalty of “imprisonment of six months to six years”. [Id. at 6 of 8]

         In both the criminal complaint and his Verified Complaint, Hernandez avers that without his consent or agreement, Ochoa continues to wrongfully retain the Child in the United States- specifically, in Albuquerque, New Mexico. [Doc. 1 at 1, 2, 6 of 11]. He asks for an ex parte TRO prohibiting the removal of the Child from the jurisdiction of this Court pending a hearing the merits of the Verified Complaint.

         LEGAL STANDARDS

         I. Temporary Restraining Order

         Rule 65(b)(1) of the Federal Rules of Civil Procedure provides that the Court may grant a temporary restraining order (TRO) without notice to the other side only when (1) “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 (2) “the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” An ex parte TRO has a limited life: Rule 65(b)(2) provides that a TRO may not extend beyond 14 days, “unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Further, “[i]f the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character.” Rule 65(b)(3). Finally, a TRO must state the reasons why it issued, state its terms specifically, and describe in reasonable detail-and not by referring to the complaint or other document-the act or acts restrained or required. Rule 65(d)(1).

         In order for a party to be entitled to a temporary restraining order or a preliminary injunction, that party must show “(1) he or she will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)) (alterations omitted).

         II. The Hague Convention

         The purpose of the Hague Convention, T.I.A.S. No. 11670, 1988 WL 41150, as well as its corresponding United States law, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 et seq., is to “deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custody ruling in another country.” Navani v. Shahani, 496 F.3d 1121, 1124 (10th Cir. 2007).

         In order to obtain relief under his Complaint, an ICARA plaintiff such as Hernandez must show by a preponderance of evidence that 1) the Child was a habitual resident of Mexico at the time he/she was abducted by Defendant, 2) the abduction was in breach of Plaintiff's custody rights under Mexican law, and 3) Plaintiff was exercising his custody rights at the time the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.