Poix v Santana, 2022 WL 16751915 ( S.D. New York, 2022)[Dominican Republic] [Petition granted] [ Temporary stay granted]

 

In Poix v Santana,  2022 WL 16751915( S.D. New York, 2022) on October 17, 2022, the Court granted  Petitioner Joseph Etienne’s Petition for the return of his children, M.G.E. and A.F.E., to the Dominican Republic. Respondent filed a notice of appeal and a motion to stay its order for the return of the children pending appeal. The District Court observed that courts should apply the four traditional stay factors in considering whether to stay a return order: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured 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) “[A] district court’s application of these four factors to its own return order under the Hague Convention will rarely augur in favor of issuing a stay.” Hofmann v. Sender, No. 12 Civ. 8104 (KMK), 2012 WL 8466673, at *1 (S.D.N.Y. Dec 20, 2012); see also Lukic v. Elezovic, No. 20 Civ. 3110 (ARR) (LB), 2021 WL 804384, at *3 (E.D.N.Y. Mar. 3, 2021) (“[S]tays pending appeal of Hague Convention return orders ... are heavily disfavored.”; Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y. 2010) (“Staying the return of a child in an action under the Convention should hardly be a matter of course.” Three of the four factors clearly favored denying a stay.  Nor did the remaining factor—irreparable harm to the moving party—favor granting a stay. The return of the children would  not moot Respondent’s appeal to the Second Circuit, see Chafin, 568 U.S. at 180, and were the Court’s decision to be reversed she should be able to bring the children back to the United States, since she retained temporary guardianship of them in the Dominican Republic. Nonetheless, although staying return is ordinarily disfavored in the context of Hague Convention cases, district courts in this Circuit often grant brief, temporary stays to enable respondents to seek emergency relief from the Court of Appeals for the Second Circuit before a child is returned. See, e.g., In re E.Z., No. 21 Civ. 6524 (MKV), 2021 WL 5106637, at *26 (S.D.N.Y. Nov. 2, 2021); Lukic, 2021 WL 804384, at *4; Grano v. Martin, 443 F. Supp. 3d 510, 545 (S.D.N.Y. 2020); Souratgar v. Fair, No. 12 Civ. 7797 (PKC), 2012 WL 6700214, at *18 (S.D.N.Y. Dec. 26, 2012); Hofmann, 2012 WL 8466673, at *2; Haimdas, 720 F. Supp. 2d at 211-12. And the Court of Appeals has indicated that it finds such brief delays helpful. See Diorinou v. Mezitis, 237 F.3d 133, 138 (2d Cir. 2001) (“The District Court helpfully stayed its order until November 30 to permit Mezitis to seek a stay pending appeal from this Court.”). For that reason, the Court granted a brief stay of one week of its October 17, 2022 order that Respondent return M.G.E. and A.F.E. to the Dominican Republic, so that Respondent may seek emergency relief from the Court of Appeals.