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Sunday, October 2, 2022

Recent Hague Convention District Court Cases - Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

 

Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

[Germany][Petition granted] [Request for third Stay denied]


 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.