S. Ct. Civ. No. 2015-0070

In a child custody dispute, the mother's emergency motion for a stay pending appeal of a Superior Court order directing her to make arrangements for her minor son to relocate to Florida to live with his father, no later than August 10, 2015, is granted under the balancing of the equities standard. Ordinarily, in determining whether a litigant is entitled to a stay pending appeal the factors considered are: (1) whether the litigant has made a strong showing of likely success on the merits; (2) whether the litigant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies. While the first factor is ordinarily the most important, a stay motion may be granted upon a showing of a substantial case on the merits when the balance of equities, as determined by the other three factors, clearly favors a stay. Here, as mother has argued, the child would face a hardship if forced to relocate to Florida and then abruptly relocate to the Virgin Islands if the Court ultimately decides to reverse the Superior Court's order, and this hardship greatly outweighs the hardship the father may experience from delayed assumption of sole custody of the child. The mother has also established a substantial case on the merits so as to justify a stay, as the Superior Court's own findings appear to indicate that it may have impermissibly weighed the rights and interests of the father rather than the child, by considering that father never had primary custody of the child previously, a fact that appears wholly irrelevant to analysis of the best interests of the child. The motion for a stay pending appeal of the Superior Court's July 22, 2015 order is granted.