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.
