“I want and must take an appeal. However, before the appellate process can be completed, I will have lost my money and child and there will be no way to undo what I firmly believe is an erroneous order of the trial court. I have done some research and believe I need to stop the order from being applied, seeking a stay of the order. The trial court seems unlikely to grant this. What do I do?”
A stay of a trial court’s interlocutory or final order is possible, but it is a complex and technical process that skilled counsel can navigate with you. As a threshold matter, the trial rules (the rules applicable to the proceedings where the order issues) allow for a stay pending appeal.
At Ciyou & Dixon, P.C., what we observe in practice is that a trial court is much more likely to grant a stay if there is sufficient security provided to the person or entity who prevailed. For example, if the sum in question is $50,000.00, a trial court is likely to grant a stay if the Appellant posts that money in an account controlled by the Clerk of its court.
Where matters involve high emotion, and items that are not easily reduced to a dollar figure, it is much more likely a trial court will not grant a stay, even if it is characterized as an emergency. A classic example is where a trial court allows a custody parent to move to a distant state.
In the absence of a stay, and assuming the Appellant prevails on appeal, new facts have developed by the child’s relocation and it may not be in his or her best interests to remain in the new environment. For this reason, parties and seasoned advocates typically consider an emergency stay.
Simply put, no amount of money addresses the interests of the mother or father in this case. Nevertheless, skilled emergency stay lawyers may make unique and compelling arguments that may form the basis for the trial court to stay its order. In any emergency stay case, to go to the next step, and seek a stay from the Indiana Court of Appeals, there must first be an attempt to obtain a stay in the trial court.
In the absence of a stay in the trial court, the filing of an appeal itself does not stay the enforcement of the order, be it the figurative award of money and its payment or relocation of the child to a distant state. However, as with most legal matters, there is an alternative provision to allow a second chance at a stay in the Indiana Court of Appeals.
These are fairly technical, and requires the movant (the Appellant) must have first requested a stay in the trial court. There are two main provisions for an appellate stay. The first is a motion that is not an emergency in nature. Ciyou & Dixon, P.C. emergency stay attorneys have utilized such provisions to seek a stay.
Under the general provision, if a stay is something you may seek in the Indiana Court of Appeals, there are a number of materials to gather:
- The order to be stayed.
- The order denying stay or verified showing the matter has not been ruled upon.
- Relevant parts of the record to demonstrate the basis for the stay.
- An attorney’s certificate demonstrating the specifics of how everyone was served with the request.
- An attorney’s certificate stating in detail why all other parties should not be heard before a stay is entered.
In acute cases, a party may seek an emergency stay without advanced notice to the other parties. These are rare and inconsistent with the general ethical concept that each party should be heard before an order is entered. Stated differently, ex parte relief is strongly disfavored.
Nevertheless, trial and appellate rules for an emergency stay exist for those cases where there is real risk of harm. Where carefully and thoughtfully used, they may provide a remedy to an otherwise factually and legally untenable situation. If this is the matter you face, Ciyou & Dixon, P.C. may be the right counsel to help you evaluate your position.
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