Case Update (2020): Babcock v. Babcock; Provisional remedies under ICARA, no notice for temporary restraining order

The International Child Abduction Remedies Act allows a parent who is seeking the return of his or her child under the 1980 Hague Abduction Convention to request provisional remedies (see Sec. 9004).  In the case of Babcock v. Babcock, Mrs. Babcock did just that (in August 2020).  She asked the court to issue a temporary restraining order, preventing Mr. Babcock from removing their 11-year-old from Iowa pending a hearing on the merits.  She had filed a Hague Abduction return petition with the federal court.  She asked that the court grant this temporary restraining order without notice to Mr. Babcock, which is permitted under FRCP 65(b)(1) only when: (1) specific facts in her affidavit/verified complaint show that immediate and irreparable injury would result before Mr. Babcock would be heard in opposition to the TRO request, and (2) Mrs. Babcock's attorney certified any efforts to give notice to Mr. Babcock and why it should not be required.  The TRO can be granted if Mrs. Babcock proves, by a preponderance of the evidence, that: (1) there is a threat of irreparable harm, (2) the balance between the harm and injury inflicted on Mr. Babcock, (3) the probability she will succeed on the merits, and (4) the public interest. 

In analyzing the facts, the court concluded that:

1. Mr. Babcock, who refused to participate in Canadian divorce proceedings because he did not believe "[the Canadian] court ha[d any] jurisdiction whatsoever [o]ver [the] United States" will refuse to appear before the court or take steps to prevent the child from returning to Canada, which would cause irreparable harm;

2. Mr. Babcock and the child already reside in the District, so there is little injury to require their presence in the district while matters are being addressed; and,

3. Mrs. Babcock was able to prove, by a preponderance of the evidence, she could make out a prima facie case for return of the child to Canada.

Given that Mrs. Babcock is not permitted to enter the United States (she had been deported to Canada), so she was limited in being able to enter and find the child if Mr. Babcock absconded with the child, there would be irreparable harm if he was given notice and ultimately fled before a hearing was held.

As a side note, on November 30, 2020, the Court ordered the return of the child to Canada.