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In
Charalambous v Charalambous, 744 F.Supp.2d 375 (D. Maine 2010) after a
hearing the District Court granted the Petition for return and ordered
the mother to turn over the children to father's custody ( 2010 WL
4115495). The Respondent then made a motion to extend the time to turn
over the children and a motion to stay the judgment of the District
Court . The District Court denied the motion for a stay. It observed
that in order to prevail on a motion to stay, the movant must show (1)
the likelihood of success on appeal; (2) the threat of irreparable harm
if the stay or injunction is not granted; (3) the absence of harm to
opposing parties if the stay is granted; and (4) any risk of harm to the
public interest. (Citing F.T.C. v.Mainstream Marketing Services, Inc.,
345 F.3d 850, 852 (10th Cir.2003). It pointed out that in Friedrich v.
Friedrich, 78 F.3d 1060, 1063 n. 1 (6th Cir.1996) the Sixth Circuit
held: "Staying the return of a child in an action under the Convention
should hardly be a matter of course. The aim of the Convention is to
secure prompt return of the child to the correct jurisdiction, and any
unnecessary delay renders the subsequent return more difficult for the
child, and subsequent adjudication more difficult for the foreign
court." And it noted that whether to grant a stay and delay the return
of the child in this case is within the Court's discretion. (Citing
Walsh v. Walsh, 221 F.3d 204, 213 (1st Cir.2000). The Court analyzed the
factors and found that the majority of the factors weighed against
granting a stay in this case. The Court acknowledged that in the absence
of a stay, the Children would leave this country with Petitioner thereby
effectively mooting any appeal. (Citing e.g., Nicolson v. Pappalardo,
First Circuit No. 10-1125, Feb. 19, 2010 Order of the Court (granting a
stay pending appeal on this basis). Weighed against this harm to
Respondent was the significant harm to Petitioner and the Children by
any further delay in returning to Cyprus. A stay further delays a
determination of what is in the best interest of the Children by the
Cyprus courts, which are charged with that determination under the terms
of the Hague Convention. The Court saw threats of irreparable harm to
Respondent in the absence of an injunction and threats of irreparable
harm to the Children and Petitioner if a stay was allowed. It also
concluded that the public interest supported denial of the stay. The
very purpose of the Hague Convention is "to secure the prompt return of
children wrongfully removed to or retained in" a foreign jurisdiction.
See Hague Convention, T.I.A.S.No. 11,670, 1343 U.N.T.S. 89 (1980).
Entering a stay in this case would work against the purpose of the
Convention and, therefore, against the public interest. Nevertheless,
the Court granted an extension of this deadline in order to allow
Respondent to seek a stay from the First Circuit. It found this request
reasonable. |
