Long story short...
My husband's ex moved their daughter to FL back in August.
She did not have court permission, nor did my husband know until the last minute, and he found out only from another child (through the grapevine). At the time, my stepdaughter was devastatingly upset, as this was her 3rd move in little over a year, going on 3 school districts, and the purpose of the moves was to follow her mother's boyfriends job choices (switching jobs, change of hearts, etc...) - plus a foreclosed home, and a lot of other instability in-between. Her mother isn't employed, depends financially on the boyfriend that she calls her fiance', although he is still married in another state (supposedly amidst a divorce proceeding), yadayada...

My husband immediately filed for custody, and was duly awarded after an 11-hr, 2 day trial back in October. The Judge granted him custody by a 7-page written decision completely in his favor and really "dogging" her Mom, going so far as to write that her actions are clearly "deceitful and surrepticious". His daughter was to be returned to him November 1st. The day before she was due to return, her mother requested a "stay pending appeal" and was granted as such. By now, my stepdaughter was being spoiled rotten and being promised the sun, moon, and stars... and so she loves Florida and doesn't want to come back here to live.

So the ex's attny based the appeal on one ground - that the trial court's ruling focused more on the mother's actions and lack-of, than on the child's best interests, as her life in FL wasn't explored thoroughly enough. Of course, my husband's pro-se brief responded that the trial Judge DID thoroughly consider his daughter's life in FL. The LG also did a "respondents brief", but since in NYS it is no longer the LG's legal obligation to fight for a child's "best interest", but rather to "defend a child's wishes", the LG's brief was in favor of the ex's attny's brief - also stating that the child's life in FL is in need of further examination and should be remitted to Family Court.

My question is this: Since the LG is scheduled for oral argument, could he go in there and bring up the "stay", reminding the appellate panel that the child has been in FL for 8 mo's now, and has adjusted well, wants to stay, and should remain??!?!? I mean, TECHNICALLY... no, I know he's not supposed to do that... but would the appellate panel actually remit a case to family court to determine what has changed since the "stay" - in terms of, did the mom's bf get a divorce yet (looks better, and he was a big subject during trial), will they be staying in the same house, moving again according to his job changes, etc...??? Or do they just plain ONLY go on what WAS presented to the trial court, across the board?

Waiting for April 11th (which is the appellate date).