Opinion
Civil Action File No. 1:04-CV-1555-TWT.
June 2, 2004
AMENDED ORDER GRANTING EX PARTE TRO AND EMERGENCY EQUITABLE RELIEF
Plaintiff/Petitioner Isaac Robles Antonio ("Petitioner"), having filed his " EX PARTE MOTION UNDER THE HAGUE CONVENTION FOR ENTRY OF A TRO, APPLICATION FOR WARRANT SEEKING PHYSICAL CUSTODY OF CHILD, AND SCHEDULING OF AN EXPEDITED HEARING" ("Motion"), and the Court having conducted a hearing on the Motion on Tuesday, June 1, 2004, and after considering the arguments of Petitioner's counsel and the entire record, and pursuant to Federal Rule of Civil Procedure 65, the Court hereby GRANTS the Motion, ruling as follows:
(1) This Court finds that ex parte emergency relief is necessary to prevent irreparable injury. Specifically, the evidence of record shows that on November 29, 2003, Defendant/Respondent Josefina Barrios Bello ("Respondent"), who is currently married to Petitioner, wrongfully removed their seven-year-old daughter, Itzel Ameyalli Robles Barrios, without Petitioner's acquiescence or consent, from their familial home in Mexico and smuggled the child into the United States. Given that Respondent has already abducted the child and herself faces the risk of apprehension here, there exists a clear risk that Respondent will further secret the child and herself, in violation of the Hague Convention, and not appear before this Court to resolve the claim presented by Petitioner. Accordingly, and pursuant to Federal Rule of Civil Procedure 65(b), the Court finds it necessary to grant this Order without notice.
(2) Respondent is hereby prohibited from removing Petitioner's daughter, Itzel Ameyalli Robles Barrios, from the jurisdiction of this Court pending a hearing on the merits of the Verified Complaint, and no person acting in concert or participating with Respondent (including, without limitation, Respondent's brother, Santiago Barrios Bello, and her boyfriend, Cesar Guillermo Erasto Partida) shall take any action to remove the child from the jurisdiction of this Court pending a determination on the merits of this Petition.
(3) A preliminary injunction hearing on the merits of the Verified Complaint is hereby scheduled to be held on Friday, June 4, 2004, at 9 a.m. in Courtroom 2108 of this United States District Court, 75 Spring Street, Atlanta, Georgia 30303.
(4) Respondent is hereby directed to show cause at the hearing scheduled in paragraph (3) above why the child should not be returned to Mexico, accompanied by Petitioner, where an appropriate custody determination can be made under Mexican law, and why the other relief requested in the Verified Complaint should not be granted.
(5) The Court hereby orders that the trial of this action on the merits be advanced and consolidated with the preliminary injunction hearing scheduled in paragraph (3) above.
(6) The Court hereby orders the United States Marshals Service to take physical custody of the child, 7-year old Itzel Ameyalli Robles Barrios, and bring the child to a United States Magistrate Judge. The United States Marshals Service shall notify Petitioner's counsel of the date and time that Itzel Ameyalli Robles Barrios will be brought before a Magistrate Judge, and Petitioner is hereby ordered to appear before the Magistrate Judge at that date and time. The Magistrate Judge shall thereupon arrange for the child to be placed in Petitioner's temporary physical custody and otherwise set conditions consistent with this Order to guarantee that both Petitioner and the child will attend the preliminary injunction hearing scheduled in this case.
(7) Pending the hearing, Petitioner's daughter will be placed and remain in his temporary custody. Petitioner is hereby ordered to bring the child and himself to the preliminary injunction hearing scheduled in this case.
(8) The United States Marshals Service is further directed to serve Respondent with this Order, as well as the pleadings filed by Petitioner in this case.
(9) To execute this Order, the United States Marshals Service may enlist the assistance of other law enforcement authorities, including the local police.
(10) The "Order Granting Ex Parte TRO and Emergency Equitable Relief" entered by this Court at 11 a.m. on June 1, 2004 is hereby superseded by this Amended Order.
SO ORDERED.