Case Update (21 Feb 2023): Dos Santos v. Argueta-Ugalde; a stay should not be a matter of course pending an appeal of an order returning a child to habitual residence

This case illustrates a common occurrence in Hague Abduction Convention litigation in the United States. When a court orders the return of a minor child to their habitual residence, the Respondent Parent routinely requests an immediate stay of that return order. The U.S. District Court for the ED Michigan takes this family through the Chafin v. Chafin stay factors and concludes that it will not grant the Respondent's request to stay the return of the minor child pending an appeal.

To prevail on a motion for a stay, the Respondent would need to argue 4 factors: (1) whether the Respondent has made a strong showing that he is likely to succeed on the merits, (2) whether the Respondent will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injury the other interested parties, and (4) where the public interest lies.

Factor 1: The minor child in this case moved a lot. The Respondent argued that the court should have considered the facts of this case under the acclimation standard for habitual residence, but the court noted that it employed the U.S. Supreme Court correct standard from Monasky v. Taglieri. The Respondent also argued that the Petitioner consented to a relocation to the USA. This was true, but that relocation was limited in duration, with their last shared intent that they return to Brazil less than one year after relocating.

Factor 2: The Respondent argued that the child will be harmed if abruptly removed from the USA where she has a community, if she were shuttled back and forth across international borders, and that the Petitioner would be unlikely to re-return the child to the USA if the court reversed its decision on appeal. The court was not persuaded. Granting a stay on these bases will only encourage a losing party to appeal to obtain a stay.

Factor 3: Respondent argued that the Petitioner was repeatedly absent from the child's life, so there would be no substantial injury to the Petitioner to grant the stay pending appeal. But, if a stay were granted, the child would lose months when she could have been readjusting to her life in Brazil. Further, despite the absences from the child's life, the Petitioner was present virtually on a daily basis with the child.

Factor 4: The Respondent argued that there is a public interest to provide children stability, and this child has roots in Michigan now. But, the court was not persuaded, as the object of the Convention is the prompt return of children. As said in Chafin, "[i]f losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned."