[Germany][Petition granted] [Request for third Stay denied]
In Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022) on August 22, 2022, the Court granted Radu’s Petition for Return
of Children to Germany. Respondent filed a Notice of Appeal and a Motion to
Stay the Court’s Third Return Order pending the appeal . The Court held that in
considering whether to stay a return order in a Hague Convention case, courts
consider the traditional stay factors: “(1) whether the stay applicant has made
a strong showing that [s]he is likely to succeed on the merits; (2) whether the
applicant will be irreparably inured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.” Chafin v. Chafin, 568 U.S. 165,
179 (2013). The Court did not find that
Respondent had made a strong showing that she is likely to succeed on the
merits of her appeal. The second factor weighed in favor of a stay because returning
to Germany while Respondent’s appeal was pending will be disruptive to
Respondent and the children. See Chafin, 568 U.S. at
178 (“shuttling children back and forth
between parents and across international borders may be detrimental to those
children”). The third factor weighed strongly against a stay, even though
Respondent’s appeal had been expedited. Petitioner has joint custody rights
under German law and yet, as a result of Respondent’s actions, he had been
unable to see his children in over three years. The testimony and evidence
before the Court indicated that Respondent interfered with Petitioner’s ability
to contact his children. Respondent’s interference with Petitioner’s ability to
see and contact his children has and continues to cause substantial and
irreparable injury to Petitioner—and, appears to be causing injury to O.S.R.,
as well. The fourth factor was neutral, as the public interest favors both the
prompt return of wrongfully removed children and the safeguarding of the
well-being of children. On balance, the relevant factors weighed against
granting a stay pending resolution of Respondent’s appeal. However, the Court granted
Respondent’s alternative request to temporarily stay its Third Return Order
until the Ninth Circuit Court of Appeals rules on a timely filed motion to
stay.
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