United States District Court, E.D. Pennsylvania
June 1, 2004.
DAVID ALLMAN, Plaintiff
BREANNA COYLE, Defendant
The opinion of the court was delivered by: LOUIS POLLAK, Senior District Judge
The Hague Convention on the Civil Aspects of International Child
Abduction ("Convention") was adopted "to secure the prompt return of
children wrongfully removed to or retained in any Contracting State" and
"to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting
States." Convention art. 1. The United States and Ireland, as signatories
to the Convention, are both "Contracting States." Congress implemented
the Convention in 1988 with the passage of the International Child
Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601-11610. Invoking
the Convention and ICARA, David Allman, a citizen of Ireland, filed a
complaint in this court against Breanna Coyle, alleged to be an American
citizen,*fn1 seeking the return of their daughter Ayesha from the United
States to Ireland. Twelve days after the complaint was filed, Ms. Coyle
returned to Ireland with Ayesha. Ms. Coyle now moves to dismiss this
action as moot. For the reasons that follow, the motion to dismiss will
Factual and Procedural Background
In considering a defendant's motion to dismiss, the court must accept
as true all of the factual allegations in the complaint and draw all
reasonable inferences in favor of the plaintiff. Shaev v. Saper,
320 F.3d 373, 375 (3d Cir. 2003). The factual background that follows is
drawn primarily from Mr. Allman's complaint. Mr. Allman and Ms. Coyle
began a relationship in December 1998 while both resided in Ireland. The
two subsequently lived together, but never married. On June 7, 2000, a
daughter, Ayesha, was born to the couple. Mr. Allman, Ms. Coyle, and
Ayesha lived together in Cork City, Ireland, for over two years. In August 2002, Mr. Allman and Ms. Coyle separated. Mr. Allman moved to
Bandon in County Cork, and Ms. Coyle and Ayesha moved to a new residence
in Cork City. Following the separation, Mr. Allman applied to the
District Court for the Area of Clonakilty for a declaration of
guardianship under section 6A of Ireland's Guardianship of Infants Act.
The District Court conducted a hearing on December 10, 2002, after which
the proceedings were adjourned to allow the parties to attend counseling
and seek an agreement. When no agreement was reached, the District Court
issued an order appointing Mr. Allman as a guardian of Ayesha and
granting him a right of "access," or visitation, on four dates over the
Christmas holiday in 2002 and weekly thereafter, from Tuesday morning
until Wednesday afternoon.
Mr. Allman saw Ayesha weekly as scheduled through November 18-19, 2003.
The following week, on November 25, 2003, Ms. Coyle failed to appear with
Ayesha to deliver her to Mr. Allman. Mr. Allman went to Ms. Coyle's home
but was unable to locate either Ms. Coyle or Ayesha. On November 27,
2003, Mr. Allman spoke with the partner of Ms. Coyle's mother, who told
Mr. Allman that he did not know where Ayesha was but that she was no
longer in Ireland. Based on this information, Mr. Allman suspected that
Ms. Coyle and Ayesha were living with family or friends in Montgomery
In December 2003, Mr. Allman submitted a request for assistance to
Ireland's Department of Justice, Equality and Law Reform ("Department"),
which is designated as Ireland's "Central Authority" for purposes of
facilitating proceedings under the Convention. The Department contacted
the American "Central Authority," the United States Department of State's
Office of Children's Issues, which assisted Mr. Allman in obtaining
counsel in the United States. On March 17, 2004, Mr. Allman filed a complaint in this court under the
Convention and ICARA, alleging that Ms. Coyle had taken their child from
Ireland to the United States in violation of his custody rights. On March
24, pursuant to this court's order, the United States Marshals Service
served Ms. Coyle at her sister's house in Glenside, Pennsylvania, with
the complaint and an order from this court. The order directed Ms. Coyle
to file a responsive pleading by March 29 and to appear personally, with
Ayesha, at a hearing on March 31.
On March 29, an attorney who had been contacted, but not formally
retained, by Ms. Coyle informed the court that Ms. Coyle had returned to
Ireland. Meanwhile, Mr. Allman flew from Dublin to Philadelphia to appear
with counsel at the scheduled hearing on March 31. Ms. Coyle did not
appear, but retained counsel, who participated by telephone. Ms. Coyle's
counsel reaffirmed that Ms. Coyle and Ayesha had returned to Ireland on
March 27 or 28. Their return to Ireland has since been confirmed by Mr.
Allman's counsel. A custody hearing involving the parties was scheduled
for May 7, 2004, in an Irish court.
On April 20, 2004, Ms. Coyle filed the present motion to dismiss on the
grounds that Ayesha's return to Ireland renders the case moot.
1. Mootness Federal courts are limited by the Constitution to resolving "cases and
controversies." See U.S. Const. art. III, § 2, cl. 1; Whitmore v.
Arkansas, 495 U.S. 149, 154-55 (1990). Mootness "ousts the jurisdiction
of the federal courts and requires dismissal of the case. . . ." Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 335 (1980). The Third Circuit
has recognized that "the central question of all mootness problems is
whether changes in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief." Jersey
Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985). The return of Ayesha to Ireland is an apt example of a change in
circumstances that has "forestalled any occasion for meaningful relief."
The authority of a court called on to enforce the Convention and ICARA
does not extend to ruling on the merits of any underlying custody
claims. Convention art. 19; 42 U.S.C. § 11601(b)(4).*fn2 Instead, a
court may only determine whether a child's removal or retention was
"wrongful"*fn3 and, if so, order the return of the child to the country
where he or she was habitually resident immediately before the removal or
retention. Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Since
the filing of Mr. Allman's complaint, Ms. Coyle and Ayesha have returned
to Ireland, which was Ayesha's habitual residence immediately before her
removal.*fn4 Now that Ayesha has been returned to her habitual
residence, this court cannot provide Mr. Allman with meaningful relief
under the Convention. See Mahmoud v. Mahmoud, No. CV-96-4165, 1997 WL
43524, at *2 (E.D.N.Y. Jan. 24, 1997) (dismissing petition under
Convention as moot upon child's return to habitual residence); Burton v.
Oyekan, No. 95-CIV-5849, 1996 WL 591285, at *1 (S.D.N.Y. Oct. 15, 1996)
(same); In re Marriage of Henches, No. 41887-4-I, 2000 WL 1667394, at *2
(Wash. Ct. App. Nov. 6, 2000) (same). Accordingly, I will grant Ms.
Coyle's motion to dismiss this matter as moot.*fn5 2. Fees and Expenses
Mr. Allman seeks to recover fees and expenses in the amount of
$1,810.42 incurred in his efforts to locate Ms. Coyle and to litigate
this matter.*fn6 He contends that he is entitled to recover his expenses
because "had [Mr. Allman] not initiated these proceedings, [Ms. Coyle]
would not have returned to Ireland." Mr. Allman also maintains that an
award of fees and expenses is warranted to deter Ms. Coyle from
disregarding court orders in the future.
While I appreciate the significant expense that Mr. Allman has incurred
in order to secure the return of his daughter to Ireland, the governing
law provides no authority for the awarding of fees and expenses in this
case. Article 26 of the Convention provides that a court "may, where
appropriate," award fees and expenses "[u]pon ordering the return of a
child or issuing an order concerning rights of access under this
Convention." ICARA authorizes the implementation of this article as
Any court ordering the return of a child pursuant to
an action brought under [ICARA] shall order the
respondent to pay necessary expenses incurred by or on
behalf of the petitioner, including court costs, legal
fees, foster home or other care during the course of
proceedings in the action, and transportation costs
related to the return of the child, unless the
respondent establishes that such order would be
clearly inappropriate. 42 U.S.C. § 11607(b)(3). While there are differences between the two
provisions most significantly, the Convention states that courts "may"
award costs, whereas ICARA directs that courts "shall" award costs unless
the respondent establishes that an award would be clearly inappropriate
both have as a precondition for awarding costs that the court "order
the return of a child." Because I have made no such order in this case, I
have no authority to direct Ms. Coyle to pay the expenses incurred by
An appropriate order follows.
AND NOW, this 1 day of June, 2004, for the reasons stated in the
accompanying opinion, it is hereby ORDERED that:
(1) This case is DISMISSED as moot.
(2) Mr. Allman's request for an award of fees and expenses is DENIED.
(3) This case is CLOSED for statistical purposes.