On February 9, 2021, in the case of Lukic v. Elezovic, the U.S. District Court for the ED of NY ordered the minor child returned forthwith to Montenegro. However, the mother failed to return the minor child. On February 22, 2021, the trial judge held a phone conference to develop a plan to return the child, and on February 26th, the parents agreed to such a plan. On March 1st, the Montenegrin Family Court denied the father’s request to modify its custody order, thereby leaving the existing custody order in place. That day, the mother appealed the return order. Therefore, the mother did not return the child as scheduled on March 5th. The father renewed a contempt motion for the mother’s failure to return the child, and the Respondent mother filed a motion to stay the return order.
A district court may issue a stay to the enforcement of a judgment while an appeal is pending, but it is a difficult burden requiring the movant to demonstrate, (1) she is likely to succeed on the merits, (2) she would be irreparably injured absent a stay, (3) the stay would not substantially injure the other interested parties, and (4) where the public interest lies. Since the Hague Abduction Convention aims to promptly return a child, stays should “hardly be a matter of course.”
The Respondent mother failed to demonstrate that a stay was appropriate. She un-persuasively argued that the denial of the father’s custody modification suit in Montenegro would alter the judge’s return order. In fact, by denying the custody modification, the Montenegrin courts essentially left the father’s rights of custody in precisely the same place as they were at the Hague abduction trial. The mother also argued that any separation of her from the child would cause irreparable harm to the child. The court cited Friedrich, saying, “a removing parent must not be allowed to abduct a child and then – when brought to court – complain that the child has grown used to the surroundings to which they were abducted. Under the logic of the Hague Convention, it is the abduction that causes the pangs of subsequent return.”
The trial judge denied the stay, but granted a 24-hour temporary stay to allow the mother to seek expedited treatment and a stay from the Second Circuit.