Tann v. Bennett

14‐4734
Tann v. Bennett
UNITED STATES COURT OF APPEALS
F OR THE SECOND C IRCUIT
_______________
August Term, 2015
(Submitted: November 24, 2015 Decided: December 3, 2015)
Docket No. 14‐4734
________________________________________________________
L ISA TANN,
Petitioner–Appellant,
—v.—
G EORGE ALAN B ENNETT, aka ALAN B ENNETT, aka ALAN D ORRIS ,
MIRANDA B ENNETT,
Respondents‐Appellees.
________________________________________________________
Before: K ATZMANN, Chief Judge; WINTER and W ALKER , Circuit Judges.

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Appellees move to dismiss Appellant’s appeal as moot based upon a 1
custody order issued by a New York state court. We find that this Court may still 2
grant effective relief to Appellant, despite the existence of the custody order. 3
MOTION DENIED. 4
_______________ 5
6
Counsel for Appellant: Sharon Lynn Nosenchuck, Diana M. 7
Straube, Neighborhood Legal Services, Inc., 8
Buffalo, NY. 9
10
Counsel for Appellee: Noemi Fernandez, Buffalo, NY. 11
_______________ 12
PER C URIAM : 13
Petitioner Lisa Tann appealed from the denial of her petition filed under 14
the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et 15
seq. ICARA implements the Hague Convention on the Civil Aspects of 16
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 17
89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986) (“Hague Convention”), which 18
was designed “to protect children internationally from the harmful effects of 19
their wrongful removal or retention and to establish procedures to ensure their 20
prompt return to the State of their habitual residence, as well as to secure 21

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protection for rights of access.” Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) 1
(quoting Hague Convention, Preamble). 2
Tann, a citizen of the United Kingdom who resides in Northern Ireland, 3
alleged that Respondent George Bennett wrongfully abducted their son, J.D., to 4
the United States. The district court denied Tann’s petition, finding that even 5
though Northern Ireland was J.D.’s habitual residence, the child’s preference for 6
staying in the United States excepted him from being returned. Tann appealed 7
the district court’s judgment to this Court. While that appeal was pending, the 8
Family Court of Orleans County, State of New York, granted full custody to 9
George Bennett. The Bennetts have now moved to dismiss Tann’s appeal as 10
moot, on the grounds that this Court can no longer grant effective relief. 11
“A case is moot when the issues presented are no longer ‘live’ or the 12
parties ‘lack a legally cognizable interest in the outcome.’” Blackwelder v. Safnauer, 13
866 F.2d 548, 551 (2d Cir. 1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481 14
(1982)). “A moot action . . . must be dismissed, even if the case was live at the 15
outset but later events rendered it moot on appeal.” N.Y.C. Emps.’ Ret. Sys. v. Dole 16
Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992). 17

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The Bennetts contend that Tann’s appeal is moot because the New York 1
court’s custody determination resolved the parties’ dispute such that this Court 2
can no longer grant Tann’s requested relief. We disagree. The Hague Convention 3
provides that “[t]he sole fact that a decision relating to custody has been given in 4
or is entitled to recognition in the requested State shall not be a ground for 5
refusing to return a child under this Convention.” Hague Convention, art. 17. 6
Indeed, one of the primary purposes of the Hague Convention was to prevent 7
situations where “a family member would remove a child ‘to jurisdictions more 8
favorable to [his or her] custody claims in order to obtain a right of custody from 9
the authorities of the country to which the child ha[d] been taken.’” Mota v. 10
Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (quoting Gitter, 396 F.3d at 129). 11
In her appeal pending before this Court, Tann contends that the district 12
court erred in holding that J.D. should continue to reside in the United States and 13
that the New York courts are thereby authorized to resolve the underlying 14
custody dispute on the merits. If we reverse the district court’s judgment and 15
find that Northern Ireland is J.D.’s habitual residence and no exception applies to 16
prevent his return, J.D. could be returned to Northern Ireland. See Ermini v. 17
Vittori, 758 F.3d 153, 161 (2d Cir. 2014) (“If a parent establishes that the removal 18

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or retention was wrongful, the child is to be returned unless the defendant 1
establishes one of four [exceptions].”). In that event, the Northern Ireland courts 2
would have jurisdiction to determine the merits of the underlying custody 3
dispute. Cf. In re Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006) (“[T]he 4
Convention does not allow the state to which a child has been wrongfully taken 5
actually to decide who should have custody, and thus a determination by the 6
host country that a party had custody rights in the country of origin for purposes 7
of determining whether removal was wrongful under the Convention has no 8
bearing on the merits of a subsequent custody determination in the country of 9
origin once the child is returned.”). As a result, the parties retain a legally 10
cognizable interest in the outcome of Tann’s appeal, notwithstanding the custody 11
decision by a New York court. 12
Although the question of whether a state custody order moots an ICARA 13
claim is one of first impression in this Circuit, the Seventh Circuit’s opinion in 14
Walker v. Walker is instructive: 15
Accepting [the Respondent’s] position that an abducting parent may 16
render a petition for return moot by racing to a courthouse in her 17
chosen country to obtain a custody judgment would turn the 18
Convention on its head. The entire purpose of the Convention is to 19
deter parents from absconding with their children and crossing 20
international borders in the hopes of obtaining a favorable custody 21

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determination in a friendlier jurisdiction. To consider this case moot 1
would encourage the very sort of jurisdictional gerrymandering the 2
Convention was designed to prevent. 3
4
701 F.3d 1110, 1116 (7th Cir. 2012) (citation omitted). The same concerns are 5
implicated here: holding that Tann’s petition is moot because the Bennetts 6
received a favorable custody determination in a potentially friendlier New York 7
court could encourage the jurisdictional gerrymandering that the Hague 8
Convention was designed to prevent. 9
Accordingly, for the foregoing reasons, Appellees’ motion to dismiss the 10
appeal as moot is DENIED. 11

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