United States District Court, D. Idaho
DAVID NEIL SMITH, Mundford, Norfolk, England, United Kingdom, Plaintiff-Petitioner,
VICKIE MICHELLE SMITH, Caldwell, Idaho, United States of America, Defendant-Respondent.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court.
Court has before it an ex parte application for a
temporary restraining order. Plaintiff David Neil Smith asks
the Court to, among other things, enjoin his ex-wife,
defendant Vickie Michelle Smith, from removing their minor
child from Idaho until a hearing can be held to determine
whether the child should be returned to England for custody
proceedings under that nation's laws. For the reasons
explained below, the Court will grant the motion.
Smiths were married in 1997 and resided in England. There,
they had two children, D.O.S. (now age 16) and D.M.S (now age
15). Nearly twenty years later, the marriage broke down and
David filed for divorce. The court in England granted primary
custody of the children to Vickie while David received
visitation rights. Vickie initially filed a motion with the
English court to remove the boys permanently from the
jurisdiction but withdrew that motion, See Order (Dkt.
No. 1-5) at p. 3, and represented to the court, through
her solicitor, that “she will not remove the children
from the jurisdiction without the agreement of [David
Smith].” See Order (Dkt. No. 1-6) at p. 2.
lawsuit, David alleges that Vickie absconded with D.M.S. to
the United States on May 30, 2017, without David's
permission, and without approval of the English court.
Apparently, Vickie left behind their other child, D.O.S.
David alleges that Vickie told him that she “would not
be coming back.” See Complaint (Dkt. No. 1) at
¶ 19. According to David, Vickie and D.M.S. have
“temporarily resided at multiple addresses in at least
three states, including at a homeless shelter.”
Id. at ¶ 25.
regain custody of D.M.S., David initiated proceedings in the
English court to compel Vickie to return D.M.S. to England.
The court did not grant the requested relief because it was
unclear whether Vickie had notice of the petition, but the
court did grant leave to David to restore his application
once Vickie received notice. See Order (Dkt. No.
1-10) at p. 2. The court did “note”,
however, that (1) in earlier proceedings, Vickie had
“assured the Court (through her instructed solicitor)
that she would not remove the children (or either of them)
from the jurisdiction without the agreement of the Applicant
father, such assurance being recorded on the face of the
order”; (2) that Vickie was “in breach” of
the custody orders; and (3) that the “removal of
[D.M.S.] from the jurisdiction of England and Wales, and his
retention outside the jurisdiction is wrongful within the
meaning of Article 3 of the Hague Convention 1980.”
Id. at p. 2.
alleges that Vickie is now living with D.M.S. in a
friends' home in Caldwell Idaho. He fears that she will
flee to another state once she hears of this lawsuit,
especially given her history of moving state-to-state.
filed a complaint against Vickie in this Court on November
30, 2017, alleging that her removal of D.M.S. was wrongful
under Article 3 of the Hague Convention, and asking for an
Order that D.M.S. be returned to England. In David's
motion now before the Court, he seeks an ex parte
temporary restraining order (TRO) enjoining Vickie from
removing D.M.S. from Idaho pending a hearing on the
complaint's request to return him to England.
obtain a temporary restraining order, David must establish
that: (1) he is likely to succeed on the merits; (2) he is
likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest.
Winter v. NRDC, 555 U.S. 7, 24 (2008). An evaluation
of the first element - the likelihood of success on the
merits - turns on a review of the Hague Convention, which
Congress implemented through the International Child
Abduction Remedies Act (ICARA), designed to address the
problem of parental international child abduction. The
Signatories perceived that parents were wrongfully taking
their children across international lines “in search of
a more sympathetic court” for custody proceedings.
Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1181
(9th Cir. 2002). The Convention sought to
eliminate this motivation by allowing for the prompt return
of abducted children. Id. at 1182.
the ICARA, David must show that D.M.S. was “wrongfully
removed” by Vickie “within the meaning of the
[Hague] Convention.” See 22 U.S.C. § 9003
(e)(1)(A). The Convention, in Article 3, states that a
child's removal is “wrongful” if “it is
in breach of rights of custody” under the law of the
jurisdiction where “the child was habitually resident
immediately before the removal . . . .” See Hague
Conv. Art. 3. In determining whether Article 3 applies,
the Ninth Circuit has held that a court must answer four
questions: “(1) When did the removal or retention at
issue take place? (2) Immediately prior to the removal or
retention, in which state was the child habitually resident?
(3) Did the removal or retention breach the rights of custody
attributed to the petitioner under the law of habitual
residence? (4) Was the petitioner exercising those rights at
the time of the removal or retention?” Papakosmas
v. Papakosmas, 483 F.3d 617, 622 (9th Cir.
on the record in this case, and the statements of the English
court set forth above, it is likely that David will
successfully show that (1) D.M.S. was removed in May of 2017;
(2) at that time, D.M.S. was habitually residing in England;
(2) the removal breached Vickie's assurance to the court
that she would not remove D.M.S. without David's consent;
and (3) David was exercising his custodial rights at the time
of the removal. Because there appears in this record no
excuse for Vickie's breach of her assurance to the
English court, the equities tip in David's favor. He is
likely to suffer irreparable harm if a TRO is not granted
given Vickie's history of moving state-to-state, which
would prevent any court from obtaining jurisdiction to
resolve this dispute. Finally, an injunction would appear to
be in the public interest as it would ensure a forum for
resolution of this dispute.
ex parte TRO will only issue in “a very narrow
band of cases in which ex parte orders are proper
because notice to the defendant would render fruitless the
further prosecution of the action.” Reno Air Racing
Ass'n v. McCord,452 F.3d 1126, 1131
(9thCir. 2006). This is one of those rare cases
because of the threat that Vickie could prevent David from
ever obtaining a forum for resolution of this dispute. The
Court will therefore issue an ex parte TRO enjoining
her from moving D.M.S. outside Idaho until a hearing can be
held on David's preliminary injunction motion. David also
requests that she turn over any passports or travel documents
but an ex parte TRO should be no broader than
necessary, and the Court finds that the Order to remain in
Idaho should be sufficient. Finally, David requests that the