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Muwakil-Zakuri v. Zakuri

United States District Court, D. Connecticut

December 11, 2017

NIMAH MUWAKIL-ZAKURI, Plaintiff,
v.
MARLON AZIKIWE ZAKURI, Defendant.

          RULING AND ORDER RE: MOTION FOR TEMPORARY RESTRAINING ORDER (DOC NO. 3)

          Janet C. Hall, United States District Judge.

         This case comes before the court pursuant to a petition for relief under the Hague Convention on Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, title 22, sections 9001 through 9011. The petitioner, Nimah Muwakil-Zakuri, filed a Verified Complaint (Doc. No. 1) alleging that the respondent, Marlon Azikiwe Zakuri, is unlawfully retaining custody of I., age twelve, and A., age five (“the Children”). Muwakil-Zakuri alleges that the Children are habitual residents of Trinidad and Tobago, that she had custody of them in that country, that she permitted the Children to stay with their father, Zakuri, in the United States for twenty days terminating by agreement on August 28, 2017, and that Zakuri has unlawfully retained them up to and including this date.

         Muwakil-Zakuri moves this court for judgment in her favor establishing that the Children be returned to Trinidad and Tobago. Muwakil-Zakuri further moves for a Temporary Restraining Order that:

• The Children be removed from Zakuri by the United States Marshal and delivered to Muwakil-Zakuri for care and custody pending further order of the court;
• All travel documents for the Children be surrendered to the United States Marshal and placed with the Clerk of the Court;
• Neither Zakuri nor anyone acting in concert with him shall take any action to remove the Children from the jurisdiction of this Court, or contact, harass, or restrain the Children or Muwakil-Zakuri in any way, pending a determination of the merits of the Verified Complaint.

See Motion for Temporary Restraining Order (“Mot. for TRO”) (Doc. No. 3) at 3-4. The court held an ex parte hearing on the Motion for a Temporary Restraining Order on December 11, 2017. During that hearing, Muwakil-Zakuri offered evidence, and the court made factual findings on the record.

         Based on those findings and for the following additional findings and reasons, Muwakil-Zakuri's Motion for Temporary Restraining Order is granted with slight modification.

         I. LEGAL STANDARD

         Temporary restraining orders may be issued without notice to the opposing party if “specific facts in . . . 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 “the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b). Counsel has so certified.

         The Second Circuit applies similar standards for temporary restraining orders and preliminary injunctions, “and district courts have assumed them to be the same.” See Foley v. State Elections Enforcement Com'n, No. 10 Civ. 1091 (SRU) (D. Conn. Jul. 16, 2010), 2010 WL 2836722, *3 (quoting Allied Office Supplies, Inc. v. Lewandowski, 261 F.Supp. 107, 108 n.2 (D. Conn. 2005)). Preliminary injunctive relief is an extraordinary remedy and is never awarded as a matter of right. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v. Gross, 135 S.Ct. 2726, 2736 (2015) (internal quotation marks omitted). “In deciding a motion for preliminary injunction, a court may consider the entire record including affidavits and other hearsay evidence.” Johnson v. Newport Lorillard, No. 01 Civ. 9587 (SAS), 2003 WL 169797, *1 (S.D.N.Y. Jan. 23, 2003).

         II. ANALYSIS[1]

         A. ICARA Restrictions on Removal from Physical Custody / State Law

         Pursuant to title 22, section 9004(a), a court having jurisdiction under ICARA “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.” 22 U.S.C. § 9004(b). However, section 9004(b) expressly provides that courts may not “order a child removed from a person having ...


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