Typically, a parent seeking a custody modification for their child must petition the court and follow the standard litigation procedure. However, in certain circumstances, courts may allow a parent to remedy a custodial dispute through a temporary restraining order (“TRO”). A TRO “is a drastic remedy intended to preserve the status quo until the Court can hold a hearing on a motion for preliminary injunction.”
In the realm of family law, TROs can be used to prohibit a variety of actions, including prohibiting a spouse from transferring or destroying marital property during a divorce proceeding or prohibiting one parent from moving a child in common before a custody arrangement is settled. In July 2023, the U.S. District Court for the Eastern District of Virginia granted a TRO for this exact situation. In Cuidad v. Reyes, the two parties were parents with a child in common. The mother, father, and child were all Peruvian citizens but lived in Virginia since 2022. The mother received the father’s permission to take the child on a multi-week vacation in Mexico. However, after two weeks without contact, the mother notified the father that neither she nor the child would be returning.
In an effort to retain his shared custody of his child, the father took several remedial actions, including submitting a Hague Convention and International Child Abduction Remedies Act petition to return the child to Peru, and filing a TRO in Virginia to prohibit the mother from removing the child from the Commonwealth. All TROs are evaluated using four factors:
(1) a likelihood of success on the merits;
(2) a likelihood of irreparable harm in the absence of the requested relief;
(3) that the balance of equities tips in its favor; and
(4) that an injunction is in the public interest.
In Cuidad v. Reyes, the court determined each factor weighed in favor of the father. First, the father had a strong likelihood of success because the father “was exercising his custodial rights and would have continued to do so but for [the mother’s] actions.” Second, the court found that the mother’s concealment of the child’s whereabouts irreparably harmed the father’s custodial rights. Third, the equities weighed in the father’s favor because such a TRO would not impact the mother’s parental rights, it merely would allow the father to have his child returned and properly determine custody in Peru. Finally, the public interest weighed in favor of the TRO “[s]ince international abduction and wrongful retention of a child is harmful to his or her wellbeing.”
TROs are unique remedies intended to prevent probable and irreparable harm. While TROs are not necessarily common in family law disputes, the Cuidad v. Reyes case demonstrates how TROs can be effectively utilized to allow a parent to properly determine custody of their child.
Led by Joanna Foard, General Counsel, P.C.’s family/divorce can help you. Divorce and related matters can be complex and because of their importance, it is beneficial to consult with an attorney experienced in family law matters. Our family law attorneys are well-versed in divorce matters and can help you navigate the process and protect your rights. Email us at firstname.lastname@example.org, call us at 703-556-0411, or use this Contact Us form to see how we can help you.