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Monday, December 28, 2015

Tann v Bennett, 807 F.3d 51 (2d Cir 2015)[United Kingdom] [Federal and State Judicial Remedies] [Appeal]

In Tann v Bennett, 807 F.3d 51 (2d Cir 2015) Petitioner Lisa Tann appealed from the denial of her petition filed under the International Child Abduction Remedies Act . Tann, a citizen of the United Kingdom who resided in Northern Ireland, alleged that Respondent George Bennett wrongfully abducted their son, J.D., to the United States. The district court denied Tann's petition, finding that even though Northern Ireland was J.D.'s habitual residence, the child's preference for staying in the United States excepted him from being returned. Tann appealed the district court's judgment to this Court. While that appeal was pending, the Family Court of Orleans County, State of New York, granted full custody to George Bennett. The Bennetts  moved to dismiss Tann's appeal as moot, on the grounds that the Court can no longer grant effective relief. The Second Circuit denied the motion. It observed that a case is moot when the issues presented are no longer ‘live’ or the parties ‘lack a legally cognizable interest in the outcome.’ ” Blackwelder v. Safnauer, 866 F.2d 548, 551 (2d Cir.1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). It rejected the  Bennetts argument that the appeal was moot because the New York court's custody determination resolved the parties' dispute such that the Second Circuit could no longer grant Tann's requested relief. It pointed out that the Hague Convention provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” Hague Convention, art. 17.In her appeal Tann contended that the district court erred in holding that J.D. should continue to reside in the United States and that the New York courts are thereby authorized to resolve the underlying custody dispute on the merits. The court pointed out that if it reversed the district court's judgment and find that Northern Ireland was J.D.'s habitual residence and no exception applied to prevent his return, J.D. could be returned to Northern Ireland. In that event, the Northern Ireland courts would have jurisdiction to determine the merits of the underlying custody dispute. Holding that Tann's petition was moot because the Bennetts received a favorable custody determination in a potentially friendlier New York court could encourage the jurisdictional gerrymandering that the Hague Convention was designed to prevent.

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