United States District Court

for the

Southern District of Florida

In re E.G.A., a Minor.

Jean-Christophe Albou, Petitioner,

v.

Ana-Maria Toro, Respondent.

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Civil Action No. 22-23128-Civ-Scola

Order Granting Ex Parte Application for Entry of Temporary Restraining

Order

This matter is before the Court on Petitioner Jean-Christophe Albou’s

Verified Petition for Relief under the Hague Convention on the Civil Aspects of

International Child Abduction and Petition for Immediate Issuance of Show

Cause Order. (ECF No. 1.) The Petitioner, Mr. Albou, moves, ex parte, for entry

of a temporary restraining order against the Respondent, Ms. Toro, pursuant to

the Convention on the Civil Aspects of International Child Abduction, done at

the Hague on October 25, 1980 (the “Hague Convention”). The Court has

carefully considered the Petition, the record, and the governing law. For the

reasons stated below, the Court grants the Plaintiff’s ex parte Petition for a

Temporary Restraining Order. (ECF No. 1.)

1. Background

The Court finds the following facts and allegations, based upon its review of

the Petitioner’s pleadings and attachments, support the issuance of the

Temporary Restraining Order (“TRO”):

1. The Petitioner, Jean-Christophe Albou, initiated this action by

filing a Verified Petition (the “Verified Petition”) pursuant to the Hague

Convention. (Pet., ECF No. 1.)

2. The substance of the Petitioner's claim is that his child, five-yearold E.G.A (the “Child”), was removed from France and retained by

the Respondent, Ana-Maria Toro, the Child’s mother, in violation of an

agreement entered into by the Petitioner and the Respondent. The Petitioner,

the Respondent, and Child are citizens of France. The Respondent is also a

citizen of Colombia. (Pet. ¶¶ 1-5.)

3. In July of 2020, while still in France, the Respondent began an

online relationship with an American who sent her an engagement ring and a

credit card in September of 2020. In August of 2020, the Respondent

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discontinued living with the Petitioner and the Petitioner cared for Child. (Pet.

¶¶ 8-9.)

4. In October of 2020, the Respondent traveled to Colombia and then

Mexico using her Colombian passport to meet with her American fiancé. The

Respondent did not return to France until mid-December of 2020. (Pet. ¶ 10.)

5. On December 31, 2020, the Respondent once again left France,

this time to travel to Miami, Florida, and did not return until mid-February of

2021. During these absences, the Petitioner cared for the Child. (Pet. ¶ 11.)

6. In January of 2021, the Civil Solidarity Pact (“PACS”) between the

Respondent and Petitioner, which grants legal status to non-married couples in

France, was effectively broken. Accordingly, at the end of January, the

Petitioner initiated legal proceedings in the French Family Court to establish

timesharing with the Child and to prevent the Respondent from removing the

Child from the French territory. (Pet. ¶ 12.)

7. In mid-February of 2021, the Respondent returned to France,

established separate housing, and began caring for the Child. (Pet. ¶ 13.)

8. In April of 2021, with the assistance of an attorney, the

Respondent and the Petitioner agreed to terms for child sharing and joint

custody of the Child which would be submitted for approval to a family court

judge in Paris. In May of 2021, at a hearing before the family court judge in

Paris, the joint custody agreement was approved by the French tribunal. The

Petitioner agreed that the primary residence of the child would be with the

Respondent, but the Petitioner would have liberal daily visitation rights with

the child in Paris and exercise joint custody over the Child. This agreement was

the subject of the judgment of the French tribunal (the “French Custody

Judgment”), setting forth the daily time-sharing details. (Pet. ¶ 14, Ex. A.)

9. In June of 2021, the Respondent announced that she was

pregnant by her American fiancé. (Pet. ¶ 15.)

10. On December 16, 2021, the Respondent, the Petitioner, and the

Child took a Christmas vacation to Miami, Florida, traveling together. All three

had airline tickets returning to France on January 4, 2022, when school would

resume for the Child. The Child is autistic and attends special classes with a

shadow employee who supervises all his activities in school. Prior to the

scheduled return, the Respondent announced that she would not travel back to

France with the Child due to renewed Covid-19 outbreaks in Paris and fears

over herself or Child contracting Covid. However, the Respondent promised to

return no later than February, once the Covid outbreak had diminished.

Accordingly, the Petitioner returned to France with the expectation that the

Respondent and the Child would soon follow. (Pet. ¶ 16.)

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11. In February of 2022, the Respondent claimed that she was having

a difficult pregnancy and had obtained a medical certificate (which the

Petitioner now alleges was fraudulent) stating that, due to her medical

condition, she should give birth in the United States rather than risk return

travel to France. In March of 2022, the Respondent gave birth to a son in

Miami, Florida. (Pet. ¶ 17.)

12. On March 10, 2022, the Respondent advised the Petitioner that

because she could not travel and the Child’s visa was expiring, it was

necessary to obtain an immigration extension and that the Petitioner would

have to sign an affidavit authorizing the Child to remain in the U.S. territory.

Given these circumstances, the Petitioner agreed, but only on the condition, as

the affidavit sets forth, that the Child be returned to France no later than May

15, 2022. Unknown to the Petitioner at the time, the Respondent was married

to her American fiancé in April of 2022. (Pet. ¶ 18, Ex. B.)

13. In May of 2022, notwithstanding her promise to return the Child to

France by May 15, 2022, the Respondent announced that she was applying to

be a U.S. permanent resident along with the Child, would not return to France,

and would retain the Child with her in Miami, Florida. In July of 2022, the

Petitioner flew to Miami and attempted to reason with the Respondent and

convince her to allow the Child to return with him to France. The Respondent

refused. (Pet. ¶ 19.)

14. The Petitioner returned again to Miami in September of 2022 to

see the Child and attempted to reason with the Respondent to allow for the

Child to return to France with the Petitioner. During this visit, the Respondent

allowed the Petitioner to take the Child to the Petitioner’s rented home in

Aventura, Florida. While the Child was with the Petitioner in his rented home,

however, the Respondent abruptly and violently entered the Petitioner’s home

to remove the Child. The Aventura police were summoned, but no arrests were

made. Since this incident, the Respondent has refused to allow the Petitioner

any further contact with the Child. (Pet. ¶ 20.)

2. Legal Standard

In the Eleventh Circuit, the standard for granting a motion for a

temporary restraining order is the same as that required for granting a

preliminary injunction. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,

1231 (11th Cir. 2005). A party seeking to obtain a preliminary injunction must

demonstrate:

(1) a substantial likelihood of success on the merits;

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(2) a substantial threat of irreparable injury if the injunction were

not granted;

(3) that the threatened injury to the plaintiff outweighs the harm an

injunction may cause the defendant; and,

(4) that granting the injunction would not disserve the public

interest.

Id.; see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th

Cir. 2001). Additionally, a court may only issue a temporary restraining order

without notice to the adverse party or its attorney if:

(A) specific facts in an affidavit or 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] (B) 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)(1). Ex parte temporary restraining orders “should be

restricted to serving their underlying purpose of preserving the status quo and

preventing irreparable harm just so long as is necessary to hold a hearing, and

no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck

Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974).

3. Analysis

To establish wrongful removal under the [Hague] Convention,

[petitioners] must show that they had “rights of custody” and that they were

exercising those rights when [a respondent] removed the children [from the

home state].” Hanley v. Roy, 485 F.3d 641, 645 (11th Cir. 2007).

To succeed on a claim of wrongful removal, a petitioner must

demonstrate “by a preponderance of the evidence that: (1) the child has been

removed or retained in violation of the petitioner's ‘rights of custody’ (i.e.,

‘rights relating to the care of the person of the child ... either jointly or alone’);

and (2) ‘at the time of removal or retention those rights were actually exercised,

either jointly or alone, or would have been so exercised but for the removal or

retention.’” Id. (citations omitted). “The existence of ‘rights of custody’ are

determined by the law of the country in which the child habitually resides at

the time of removal.” Id.

Having reviewed the Verified Petition, its exhibits, and the entire record

currently before the Court, the Court concludes the following:

(1) the Petitioner has shown a likelihood of success on the merits

because the Petitioner has established rights of custody over the Child under

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French law, and the exercise of those rights at the time the Respondent

removed the Child from France;

(2) the Petitioner has made a showing of irreparable harm, because the

Child is currently in the Respondent’s custody outside of France, with no plan

of return to France;

(3) the balance of hardships tips in the Petitioner’s favor, as an equitable

basis for granting relief exists under the Hague Convention; and

(4) a temporary restraining order is in the public interest because the

relief sought would further the goals of the Hague Convention that rights of

custody and access under the law of one contracting state will be effectively

respected in other contracting states. See Schiavo, 403 F.3d at 1231; Hanley,

485 F.3d at 645.

Further, the Court finds that there is sufficient reason why notice should

not be given to the Respondent, as it is likely that absent legal restraint, the

Respondent may attempt to abscond with the Child from this District. (See Pet.

¶¶ 16-20.)

Upon review of the Petitioner’s verified petition and supporting

evidentiary submissions, the Court hereby ORDERS AND ADJUDGES that the

Petitioner’s ex parte application for temporary restraining order (ECF No. 1) is

granted, under the terms set forth below:

(1) The Respondent, Ana-Maria Toro, shall not leave the Southern

District of Florida; shall maintain her present address at 19626 E. Country

Club Drive, Aventura, Florida, 33180; and shall surrender all of the Child’s

travel documents to the Clerk of court pending trial of the above styled case.

(2) No person acting in concert or participating with the 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.

(3) The Respondent, Ana-Maria Toro, shall allow the Petitioner, JeanChristophe Albou, to engage in the same child sharing and decision-making as

is authorized by the French tribunal pending trial of this cause, which seeks

the return of the Child to his habitual residence in France.

(4) The Respondent is cautioned that violation of this temporary

restraining order may be treated as contempt of court, may be punishable as a

federal criminal offense, and could further result in the issuance of a warrant

requiring taking of custody of the Child by the United States Marshals Service.

(5) This Order shall go into effect immediately and shall remain in full

force and effect for fourteen days from the date of entry, or until further order

of the Court.

(6) Federal Rule of Civil Procedure 65 states that a bond must be

posted whenever the court issues a preliminary injunction. However, “the

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amount of security required by the rule is a matter within the discretion of the

trial court ... [, and] the court may elect to require no security at all.” BellSouth

Telecomms., Inc. v. MCIMetro Access Transmission Svcs., LLC, 425 F.3d 964,

971 (11th Cir. 2005) (cleaned up). The Court determines that the Petitioner

need not post a bond. The Petitioner is merely seeking a temporary order

prohibiting the Respondent from removing the Child from the jurisdiction,

requiring the Respondent to relinquish the Child’s travel documents to the

custody of the Court, and requiring an expedited hearing. The Petitioner is not

seeking a permanent order removing the Respondent’s custodial rights, nor is

he seeking to permanently limit the Respondent’s ability to travel. Therefore,

the Court declines to require the Petitioner to post a bond.

(7) The Petitioner shall serve copies of the Verified Petition for Relief

under the Hague Convention on the Civil Aspects of International Child

Abduction and Petition for Immediate Issuance of Show Cause Order, all

exhibits thereto, and this Order, on the Respondent. The Petitioner shall file a

notice of compliance with this provision and provide proof of service with the

notice once service is made.

(8) A hearing is set before this Court in the United States Courthouse

located at the Wilkie D. Ferguson, Jr., U.S. Courthouse, 400 North Miami

Avenue, Miami, Florida, 33128, Courtroom 12-3, on October 6, 2022, at 8:30

A.M., at which time the Respondent or any other affected persons may

challenge the appropriateness of this Order and move to dissolve the same.

(9) Any response or opposition to the Petitioner’s motion must be filed

and served on the Petitioner’s counsel and filed with the Court by October 4,

2022. The above dates may be revised upon stipulation by all parties and

approval of this Court.

Done and ordered at Miami, Florida, on September 28, 2022, at 6:30

p.m.

____________________________

Robert N. Scola, Jr.

United States District Judge

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