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As most practitioners know, the conclusion of a contested custody trial is not, by a long shot, the end of the litigation. If a court enters an order which grant a Motion for Modification of Custody, a Motion to Stay Enforcement pending appeal will almost certainly be filed by the parent who is deprived of custody by the court’s order. When confronted with the task of filing a Motion for Stay, or defending one, the question which arises is: “What is the standard used by the court when deciding to grant or deny a motion for stay pending appeal?”

The starting point for the analysis is Illinois Supreme Court Rule 305. Rule 305 (a) applies to money judgments and a stay of enforcement pending appeal is mandatory if the appealing party files a timely notice of appeal and complies with the other requirements of Rule 305 (a), including the posting of a sufficient bond. Supreme Court Rule 305(b), applies to stays of enforcement of non-money judgments and other appealable orders. Rule 305 (b) states that the court may stay enforcement of any judgment and the court may condition the stay “upon such terms as are just.” The language of Rule 305 (b), therefore, gives the lawyers and the court absolutely no guidance as to what are appropriate factors when considering whether a stay should be granted.

The Illinois Supreme Court addressed the issue in the case of Stacke v. Bates, 138 Ill. 2d 295 (1990). Although the appeal in the Stacke case did not involve a custody decision, the Supreme Court squarely addresses the question of under what circumstances it would grant a discretionary stay pending appeal. Probably because answering the question clearly with a bright line test would make the practice of law a little bit easier, the Supreme Court held that it was declining “to follow a ritualistic formula which specifies the elements a court may consider in passing on a motion to stay and which limits the courts consideration of those elements.” 138 Ill. 2d. at 308. Instead the Court should engage in a balancing process giving consideration to all elements bearing on the equitable nature of the relief sought.

Fortunately, the court did discuss certain factors which should be considered in addition to the case by case “equitable factors”. The Stacke Court first considered whether a stay is necessary to secure the fruits of the appeal if the movant is successful. Secondly, the Stacke Court considered the likelihood of success on the merits of the appellants appeal. At page 306, the Court stated:

“The most persuasive factor in this case, and one to which other courts often look, is the movants likelihood of success on the merits, which is also a component of the injunction analysis.”

The reference to the “injunction analysis” is a reference to the Fifth District Federal Court case of Ruiz v. Estelle, 650 F.2d 555 (5th Circuit 1981). In Ruiz, the court

the stay would serve the public interest. While the Illinois Supreme Court in Stacke did not specifically state that the Ruiz factors could be considered, it is safe to assume that if any of the factors set forth in Ruiz apply to the facts of a particular case, the court would rely upon those factors.

Since the most important factor appears to be the likelihood of success on the merits of the appeal, a discussion of the standard of review in a custody case would be helpful. In the case of In Re The Marriage of Sussenbach, 108 Ill 2d. 489 (1985) the Illinois Supreme Court stated:

“Determining where custody should lie in a particular case is a matter which rests within the sound discretion of the trial court. . . . it is not for a reviewing court to try the case de novo but merely to determine whether the trial court’s transfer of custody constituted an abuse of discretion. In other words, the question for the reviewing court is whether the trial court’s decision is contrary to the manifest weight of the evidence.”

In the 2004 decision of In Re the Marriage of Bates the Illinois Supreme Court expounded on what constitutes the manifest weight of the evidence. 212 Ill. 2d 49 (2004). The Bates Court stated:

“The standard of review of custody modification judgments is the manifest weight of the evidence. The trial court is in the best position to review the evidence and to weigh the credibility of the witnesses. In determining whether a judgment is contrary to the manifest weight of the evidence the reviewing court views the evidence in a light most favorable to the appellee. Where the evidence permits multiple reasonable inferences, the reviewing court will accept those inferences that support the courts order. A custody determination, in particular, is afforded “great deference” because “the trial court is a superior position to judge the credibility of the witnesses and determine the best interest of the child. 212 Ill. 2d. at 516.”

The Court in the Stacke case went on to say that although the parties seeking the stay is not required to show a probability of success on the merits, that party must present at least a substantial case on the merits and show that the equitable factors weigh in favor of the granting of the stay. The stronger likelihood of success on the merits, the less persuasive the equitable factors must be, and vice versa.

The question remains, what are the “equitable factors” the court should consider?
It is my belief that the court cannot rely solely on the “stability” argument which says that if the appellant is successful on appeal, the child would have to make two major

transitions. If this argument, by itself, were persuasive, a stay pending appeal would be automatic in all change of custody cases. Equitable factors could include a child’s special needs and access to relevant treatment and therapy, any particular educational needs of the child or other items of significance which would be adversely affected by an immediate change.

It appears that the chances of successfully defending a motion for stay pending appeal are much greater than the chances of prevailing on the motion. The great deference given to the trial courts findings would seem to be a steep hill to climb. When drafting a motion for stay, therefore, it is important to raise whatever points that can be raised other than “the judge just got it wrong”. If the moving party believes the court improperly barred a witness or excluded an opinion, for example, and these rulings were critical to the outcome of the case, it would be easier to plead a likelihood of success on the merits.

One final point, Illinois Supreme Court Rule 305 (d) requires the application for stay to be made first to the trial court and if denied, then to the appellate court.

Based upon the present state of the law, obtaining a stay of enforcement after an adverse custody ruling is no easy task. However, being armed with the knowledge of what a court is looking for may help a lawyer seeking a stay of enforcement pending appeal to make a more persuasive argument.


Kirsh, Matthew A., Motions To Stay Pending Appeal In Custody Cases. ISBA Family Law Section Newsletter.
November, 2008.

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