You've received a court order you believe is wrong, and you've decided to appeal. But there's a problem: the order takes effect immediately. A custody arrangement starts, child support begins accruing, or a property division gets implemented, all while your appeal is still pending. Is there anything you can do to pause the order while you wait for the appellate court to rule?
Yes. In Indiana, you can request what's called a stay pending appeal. A stay is a court order that temporarily suspends the enforcement of a lower court's ruling while an appeal works its way through the system. Getting one granted is not automatic, but for the right case, it can be a critical tool.
What Is a Stay Pending Appeal?
A stay pending appeal does exactly what it sounds like: it puts the trial court's order on hold until the appellate court has had a chance to review it. Without a stay, the opposing party can begin enforcing the order immediately, even if your appeal has merit.
In family law cases, this becomes particularly significant because:
- Custody arrangements get put into place
- Children begin transitioning between households
- Child support or spousal maintenance obligations begin
- Property transfers or sales can proceed
The practical problem is that appellate cases in Indiana can take a year or more to resolve. By the time the Court of Appeals issues its opinion, the facts on the ground may have changed significantly, especially in custody cases, where courts are reluctant to disrupt children's established routines.
Where Do You File for a Stay?
Indiana Appellate Rule 39 governs stays pending appeal. In most family law cases, you first seek a stay from the trial court that issued the original order. This makes sense because the trial court already has all the case facts and context.
If the trial court denies the stay, or if the situation is urgent enough that waiting for the trial court isn't practical, you can then apply directly to the Indiana Court of Appeals. This is a separate motion and requires showing that you sought relief at the trial level first (or explaining why that wasn't feasible).
Visit the appellate practice page for more background on how Indiana's appellate courts work.
What Must You Show to Get a Stay?
Indiana courts evaluate stay requests using a multi-factor test. You'll generally need to demonstrate:
1. Likelihood of success on appeal
This is typically the most important factor. You don't need to prove you'll definitely win, but you need to show a substantial legal question is present. Arguing that the trial court made a judgment call you disagree with usually isn't enough. Pointing to a clear legal error or an abuse of discretion is stronger.
2. Irreparable harm without the stay
You must show that enforcing the order now will cause harm that can't be undone or compensated later. In family law, this is often about custody. Once children live in a new arrangement for months or years, courts are reluctant to change it back, even if the original order was wrong. That creates a real argument for irreparable harm.
3. Harm to the other party from granting the stay
Courts balance the hardship on both sides. If granting the stay would seriously harm the opposing party or the children, that weighs against it. A stay that effectively deprives a custodial parent of all support income, for example, may be hard to justify.
4. Public interest
Courts occasionally consider broader public policy implications, though in most family law cases, this factor is less central than the first three.
Stays in Custody Cases
Custody stay requests are among the most difficult to win precisely because courts place great weight on stability for children. Indiana courts recognize that every transition is disruptive, and they are cautious about putting children in limbo during lengthy appeals.
That said, stays in custody cases are not impossible. Circumstances that can strengthen a stay request include:
- The trial court's order was based on an erroneous legal standard
- New living arrangements have not yet been implemented
- A guardian ad litem or CASA has expressed concerns about the transition
- The child's current arrangement presents safety concerns
If you're in a dispute involving interstate custody or a parent in another state, a stay becomes even more important. Once a child crosses state lines, enforcement complications multiply. For more on those situations, visit the interstate custody disputes page.
Stays in Financial Orders
Stays in financial orders, child support, spousal maintenance, or property division, can be easier to obtain because money damages are generally considered more reversible than custody changes. If you overpay support during an appeal and ultimately win, the court can theoretically order repayment. That said, actually recovering overpaid support is often practically difficult.
For property division orders, particularly those involving a sale of the marital home or transfer of business assets, the irreparable harm argument can be compelling. Once an asset is sold or transferred, reversing it may be extremely difficult or impossible.
Bond Requirements
Under Indiana Appellate Rule 39, a stay may be conditioned on the posting of a bond or security. This is particularly common for financial orders. The bond protects the opposing party against harm if the stay is ultimately not justified.
In custody cases, bonds are less common because the nature of the harm doesn't lend itself to financial security in the same way. Courts are more likely to impose conditions on parenting time or require status reports.
The Timeline Matters
One practical note: you should act quickly. If the trial court has just entered an order and there's been no enforcement yet, you have more leverage to argue for a stay. Waiting weeks while the other party has already started implementing the order makes it harder to show urgency and harder to walk things back.
File your notice of appeal and your stay motion promptly. For divorce cases involving property, particularly time-sensitive assets, delay can be costly.
Frequently Asked Questions
Does filing an appeal automatically stop the trial court order?
No. In Indiana, filing a notice of appeal does not automatically stay the trial court's order. You must separately request a stay. Until a stay is granted, the order remains fully enforceable.
What happens if I don't comply with the order while my appeal is pending?
Ignoring a court order is risky regardless of your appeal. The opposing party can seek enforcement, you could be held in contempt, and noncompliance may harm your credibility with the appellate court. If you believe the order is unjust, the proper route is a formal stay request, not unilateral noncompliance.
Can I get an emergency stay?
Yes. If the situation is urgent, you can request an emergency stay. At the Court of Appeals level, a single judge can grant a temporary stay on an expedited basis. Emergency motions require a clear showing of urgency and immediate harm.
How long does a stay last?
A stay pending appeal typically lasts until the appeal is resolved, whether by a Court of Appeals opinion, a settlement, or other disposition. If the Supreme Court takes the case, the stay may need to be extended.
What if my stay request is denied?
If the trial court denies the stay, you can apply to the Indiana Court of Appeals. If the Court of Appeals also denies it, you can in extraordinary cases seek relief from the Indiana Supreme Court. Repeated denials make the path harder, but they don't close every door if the legal issue is significant enough.
Citations
- Indiana Appellate Rule 39 (Stay of Proceedings): https://www.in.gov/judiciary/rules/appellate/index.html#_Toc118
- Indiana Court of Appeals Motions Practice: https://www.in.gov/judiciary/appeals/motions/
- Indiana Code IC 34-13-1 (Civil Procedures and Enforcement): https://iga.in.gov/laws/2023/ic/titles/34#34-13
This blog post is for informational purposes only and does not constitute legal advice. For guidance specific to your situation, contact Ciyou and Associates, P.C. at (317) 325-8570 or visit ciyoulaw.com.
