United States District Court, M.D. Florida, Tampa Division
JOHAN SEBASTIAN ALZATE CALIXTO acting on behalf of infant child, M.A.Y., Petitioner,
HADYLLE YUSUF LESMES, Respondent.
ORDER GRANTING TEMPORARY RESTRAINING ORDER UNDER THE
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
cause comes before the Court pursuant to Petitioner Johan
Sebastian Alzate 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.
initiated this action on September 1, 2017, by filing a
Verified Petition for Return of the Child to Colombia (Doc. #
1). At the Court's request, Petitioner filed an Amended
Verified Petition with confidential information redacted.
(Doc. # 6). Among other allegations, Petitioner claims that
the mother of his child, Hadylle Yusuf Lesmes, the
Respondent, has wrongfully retained their five-year old
daughter in Manatee County, Florida since November 24, 2016.
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.
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 that the Court enter a Temporary Restraining Order
barring Respondent from leaving this Court's jurisdiction
with the child until a hearing can take place on his Verified
Petition to return the child to Colombia. Petitioner also
requests that Respondent be required to surrender all
relevant travel documents pending final adjudication of the
to Rule 65 of the Federal Rules of Civil Procedure, the Court
may enter a preliminary injunction or temporary restraining
order. To obtain a temporary restraining order, the movant
must demonstrate “(1) a substantial likelihood of
success on the merits; (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).
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.”).
on the record, the Court preliminarily finds that Petitioner
will suffer irreparable harm unless this Order is granted.
Given that Respondent brought the child to Florida from
Colombia, and has refused to return the child to Colombia,
there exists a clear risk that Respondent will 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.
addition, the Court finds that the threatened injury
outweighs any harm the relief would inflict on Respondent,
because this Temporary Restraining Order is simply
maintaining the status quo. That is, this Order does not
address whether either party should have access to or custody
over the child on a continuing basis. 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, the
Court determines that the issuance of this Temporary
Restraining Order will serve the public interest.
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:
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.
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.
Respondent is prohibited from directly or indirectly securing
substitute travel documents, including a passport, for
M.A.Y., or for Respondent pending final adjudication of the
This matter is hereby referred to Magistrate Judge Julie S.
Sneed for an evidentiary hearing on the Verified Petition.
(Doc. # 6).
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 ...