UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

_____ *

Petitioner *

* Civil Action No: XXXX

_____ *

Respondent. *

* * * * * * * * * * * * *

OPPOSITION TO MOTION TO STAY

_____ seeks a stay pending his appeal of this Court’s May 1, 2002 decision granting _____ petition for the return of her son, _____, to Columbia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11, 670, 19 I.L.M. 1501 (Oct. 26 1980) (the “Hague Convention” or “Convention”).

The Supreme Court has stated that the factors regulating the issuance of a stay pending appeal “are generally the same” for a district court and for a court of appeals. Hilton v. Braunskill, 481 U.S. 770, 776, 107 5. Ct. 2113, 95 L. Ed. 2d 724 (1987) . These factors are:

(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.

Id.

The first prong of this test has not been interpreted or applied literally, even by the Courts of Appeals. Rather, it has been held that:

on motions for stay pending appeal the movant need not always show a “probability” of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.

Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (citing Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir. 1979) (“Where . . . the denial of a stay will utterly destroy the status, irreparably harming appellants, but the granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay.”)). See also Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) ; Canterbury Liquors & Pantry v. Sullivan, 999 F. Supp. 144, 149 (D. Mass. 1998) ; 11 Wright, Miller & Kane, Federal Practice and Procedure § 2904, at 503 & n. 11 (2d ed. 1995 & Supp. 1997).

v  When the request for a stay is made to a district court, common sense dictates that the moving party need not persuade the court that it is likely to be reversed on appeal. Rather, with regard to the first prong of the Hilton test, the movant must only establish that the appeal raises serious and difficult questions of law in an area where the law is somewhat unclear. See Exxon Corp. v. Esso Worker’s Union, Inc., 963 F. Supp. 58, 60 (ID. Mass. 1997); Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1558, 1561 (M.D. Ala. 1996); Mamula v. Satralloy, Inc., 578 F. Supp. 563, 580 (S.D. Ohio 1983); Evans v. Buchanan, 435 F. Supp. 832, 844 (D. Del. 1977)

v  With regard to the first prong of the test for obtaining a stay, this is not a case which raises, at this point, serious and difficult legal issues in an area where the law is unclear.

_____ will presumably assert that his appeal will be based, in part, on the ground that the evidence at trial showed he had met his burdens with respect to his Article 13 and 20 exceptions. These are factual findings that the Court of Appeals for the Fourth Circuit will review only for clear error. See Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000) ; Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001) The record does not suggest an adequate showing that these findings may be reversed on appeal.

The Court of Appeals for the Fourth Circuit may review de novo, as a legal question, this court’s conclusion that, on the facts found _____ has not established that _____ will be exposed to a “grave risk” of “physical or psychological harm” as required by Article 13 (b) of the Hague Convention in the circumstances of this case or that his return will have in an “intolerable situation”. See Blondin, 238 F.3d at 158. However, the Article 13(b) exception must be proven by clear and convincing evidence. See 42 U.S.C. § 11603 (e) (2) (A) . In view of the factual findings on which the decision concerning the Article 13 (b) exception were based, _____ cannot make an adequate showing that the Court of Appeals for the Fourth Circuit will find that this high standard has been met.

With regard to the second prong of the test for a stay, _____ will not be irreparably harmed absent a stay, Rather, he appears to focus primarily on the third prong. _____ asserts that _____ will be in danger if he returns to Columbia. In fact, it is _____ who will be irreparably harmed if the stay is granted. She has spent only one (1) day with her son in the last ten (10) months. The ten (10) months that _____ has been in the United States is inordinately long and the mere passage of time causes him to become more settled in the United States.

In the circumstances, _____ who has seen _____ only once since he was wrongfully retained in July, 2001, has a compelling interest in his prompt return to Columbia and to allow the competent courts of Columbia to decide as promptly as possible and custody issues _____ wishes to raise there.

Furthermore the Court of Appeals will not be deprived of jurisdiction or, of any real power if there is not a stay pending appeal.

Neither _____ nor _____ will be irreparably harmed if _____ required to return to Columbia pending appeal. _____ has successfully returned to the United States in the past and could, if necessary, do so again. In the circumstances established by the evidence, the balance of hardships favors _____. This factor militates against granting the requested stay.

Finally, the public interest would be served by a return of _____ to Columbia pending appeal. The Hague Convention requires that judicial authorities in the Contracting States act expeditiously in proceedings for the return of children. Hague Convention, Art. 11. The International Child Abduction Remedies Act, the implementing legislation for the Convention, states that, “ [c]hildren who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 42 U.S.C. § 11601(a) (4). The Convention and the legislation implementing it are part of the law and public policy of the United States. In the circumstances established by the evidence in this case, the public interest is best served by the return of _____ to Columbia pending appeal.


_____,

By Counsel

______

_____

______

_____

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was hand-delivered, to:

_____, Esquire

Counsel of Record for Respondent, this ______day of May, 2002.

______

_____

5