Radu v. Shon

Filing 44

ORDER granting 40 Motion to Stay re: 26 Order of September 17, 2020. The Court's September 17, 2020 Order (Doc. 26 ) is stayed pending resolution of Respondent's appeal. Signed by Judge Rosemary Marquez on 11/16/2020. (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bogdan Radu,
Petitioner,

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Persephone Johnson Shon,

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ORDER

v.

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No. CV-20-00246-TUC-RM

Respondent.

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In an Order filed on September 17, 2020, this Court granted Petitioner Bogdan

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Radu’s Petition for Return of Children to Germany pursuant to the Hague Convention on

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the Civil Aspects of International Child Abduction (“Hague Convention”), and ordered

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that minor children O.S.R. and M.S.R. be returned to Germany in the custody of

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Respondent Persephone Shon until a custody determination can be made by a German

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court of competent jurisdiction. (Doc. 26.) Respondent filed an appeal of the Court’s

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Order in the Ninth Circuit Court of Appeals. (Doc. 36.) Briefing and calendaring of the

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appeal has been expedited. See Radu v. Shon, No. 20-17022 (9th Cir. Nov. 6, 2020).

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Pending before the Court is Respondent Persephone Johnson Shon’s Motion to

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Stay Return Order Pending Appeal. (Doc. 40.)1 Respondent asks that the Court’s

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September 17, 2020 Order be stayed pending resolution of her appeal, arguing that she

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has shown a likelihood of success on the merits of the appeal, that she and the minor

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children will suffer irreparable injury absent a stay, that there will be no substantial injury

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Also pending is Petitioner Bogdan Radu’s Motion for Attorney’s Fees and Costs (Doc.
30), which will be resolved separately.

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to Petitioner by the issuance of a short stay until the expedited appeal is concluded, and

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that the public interest will be served by issuance of a stay. (Id. at 7-12.) The Court

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issued a temporary stay pending its resolution of the Motion. (Doc. 41.) Thereafter,

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Petitioner filed a Response in opposition (Doc. 42), and Respondent filed a Reply (Doc.

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43). Petitioner argues that there is no legal or factual basis for Respondent’s appeal of

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this Court’s September 17, 2020 Order, that Respondent’s wrongful actions should not be

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further prolonged, that Respondent made no good-faith effort to comply with the Court’s

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Order, and that Respondent requested a stay of the Order after the deadline for making

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travel arrangements for the return of the children had expired.

(Doc. 42 at 4-5.)

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Petitioner argues that, if the Court does grant a stay, it should order Respondent to post a

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bond to cover an attorney’s fee award, his reasonably anticipated costs on appeal, and the

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cost of securing the children’s return. (Id. at 5.) In Reply, Respondent argues that a bond

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is not permitted under Article 22 of the Hague Convention. (Doc. 43.)

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In considering whether to stay a return order in a Hague Convention case, courts

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consider the traditional stay factors: “(1) whether the stay applicant has made a strong

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showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be

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irreparably inured absent a stay; (3) whether issuance of the stay will substantially injure

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the other parties interested in the proceeding; and (4) where the public interest lies.”

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Chafin v. Chafin, 586 U.S. 165, 179 (2013).

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Respondent’s Motion to Stay raises concerns regarding the logistics of returning O.S.R.

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and M.S.R. to Germany, given the COVID-19 pandemic and the lapse of Respondent’s

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German resident permit. (Doc. 40 at 3-4 n. 2-3.) However, the Court’s September 17,

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2020 Order invited the parties to request a further hearing concerning the logistics of the

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children’s return, and Respondent failed to do so. Respondent also did not request

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reconsideration of the Court’s September 17, 2020 Order on the basis of any of her

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factual concerns regarding the logistics of the children’s return.

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Respondent filed her Motion to Stay after expiration of the Court’s deadline for making

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travel arrangements for the children’s return, she has not explained her delay, and she has

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With respect to the first factor,

Furthermore,

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not shown that she made any good-faith efforts to comply with the Court’s Order before

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requesting a stay.

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Despite these concerns, the Court finds that Respondent has sufficiently shown a

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likelihood of success on the merits of her appeal. See Leiva-Perez v. Holder, 640 F.3d

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962, 966-68 (9th Cir. 2011) (per curiam) (“to justify a stay,” a litigant “need not

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demonstrate that it is more likely than not that [she] will win on the merits” but instead

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need show only that “she has a substantial case for relief on the merits”). The Court’s

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September 17, 2020 Order found a grave risk of psychological harm under Article 13(b)

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of the Hague Convention but concluded that the risk could be avoided by requiring that

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O.S.R. and M.S.R. be returned to Germany in Respondent’s custody. Case law offers

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only minimal guidance regarding how to properly craft remedies allowing for a child’s

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return under the Hague Convention while avoiding a grave risk of harm under Article

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13(b). Given the scant case law, the Court finds that the first factor—the likelihood of

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Respondent’s success on the merits of her appeal—weighs in favor of a stay.

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The second factor also weighs in favor of a stay, given the potential harm to

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Respondent and the children of being required to return to Germany while the expedited

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appeal is pending. With respect to the fourth factor, the public interest favors the prompt

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return of wrongfully removed children, but it also favors safeguarding the well-being of

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children. Although O.S.R. and M.S.R. were wrongfully removed from Germany, they

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are currently in a safe, stable living situation in Tucson, Arizona; their return to Germany

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during the pendency of Respondent’s appeal would disrupt that living situation and

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interrupt their school year. See Chafin, 568 U.S. at 178 (“shuttling children back and

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forth . . . across international borders may be detrimental to those children.”)

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Accordingly, the Court finds that the fourth factor weighs in favor of a stay.

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considering the third factor, the Court does not take lightly the injury to Petitioner of

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further delay in seeing his children; however, that injury does not outweigh the other

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factors in light of the fact that Respondent’s appeal has been expedited. The Court will

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grant Respondent’s Motion to Stay.

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In

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The Court rejects Petitioner’s request that Respondent be ordered to post a bond.

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Article 22 of the Hague Convention states: “No security, bond or deposit, however

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described, shall be required to guarantee the payment of costs and expenses in the judicial

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or administrative proceedings falling within the scope of this Convention.” Courts have

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recognized that Article 22 prohibits imposition of bonds to secure the payment of costs

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and expenses, including attorney’s fees, in Hague Convention cases. See, e.g., Patrick v.

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Rivera-Lopez, 708 F.3d 15, 23 (1st Cir. 2013); Souratgar v. Fair, No. 12 CIV.

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7797(PKC), 2013 WL 705923, at *1 (S.D.N.Y. Feb. 22, 2013).

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Accordingly,

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IT IS ORDERED that Respondent’s Motion to Stay Return Order Pending

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Appeal (Doc. 40) is granted. The Court’s September 17, 2020 Order (Doc. 26) is stayed

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pending resolution of Respondent’s appeal.

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Dated this 16th day of November, 2020.

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