A Stay Order is a legal strategy that either Party may use to pause the court’s decision until after an appeal. It’s a right that the Parties have under California Rules of the Court §3.515 “A stay order is applicable when one party wants to suspend or pause a court’s decision while an appeal is heard”.
When is a Stay Order applicable?
A party can apply for a stay order when a Court grants an order, on the following related issues:
- Living Arrangements for Children
- Sale or Transfer of Assets
- Financial Support (Child Support or Spousal Support)
How can a Party file a Stay Order?
Once an Appeal has been filed, any party in a California Family law case can file a motion to stay on appeal (Code of Civil Procedure section §404.5). The application for a Stay Order must include a supporting affiliation that explains why the order should be stayed.
In Family Law, a party can request their stay order on an ex parte basis and must meet the ex parte requirements as defined by California Rules of Court §3.1202. Under this rule, an Ex Parte “must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte”.
What are the factors that the Court considers when granting a stay action?
While a party does have the right to file a stay order, it’s up to the Court’s discretion whether to grant or deny the stay order.
In ruling on a motion for a stay order, the Judge assigned must determine whether the stay will:
- Promote the ends of Justice
- Consider the Imminence of any trial or other proceedings that might materially affect the status of the action to be stayed, and
- Whether a final judgment in that action would have a res judicata or collateral estoppel effect about any common issue of the included actions.
What are the effects of a Stay Order?
Granted
When the Stay Orders are granted by a Court, a motion for a stay pending appeal prevents that Court from carrying out its verdict until the appeal is heard (California Rules of the Court §3.515).
This means that it does not modify the actual terms of the California family law court’s decision in any manner. Rather, the trial court’s decision is paused, preventing the orders from going into effect until there’s a chance for the appeal to be heard.
Denied
If the Stay Order is denied, the lower court’s decision will continue to be in effect, the underlying case or action will continue as scheduled, and the original ruling or judgment will remain in effect.
If you are considering filing a motion to stay the final order it must be made during the appeals process. Appeals are extremely complicated cases and our attorneys at Family Law Butler, PC are here and ready to protect your rights. If you have any questions about stays pending appeals, please do not hesitate to contact Butler Law, PC.