In Roy v Roy, 432 F.Supp.2d 1297 (S.D. Florida, 2006) the petitioners were the Irish grandparents who alleged that the minors were wrongfully removed to the United States from Ireland by their own father, the respondent. On July 29, 2005, the respondent ("the father") moved from Ireland to the United States with his three children. The father and the children had been living in Ireland since 1997, along with the children's mother, the father's wife ("the mother"). Prior to 1997, the family resided in England. However, the family moved to Ireland after the mother was diagnosed with cancer and chose to live near her Irish family. The mother passed away in November 2000, and the father and children continued to live in Ireland, where the children attended school and the father was employed until 2005. Ten days before the mother died, on October 27, 2000, she executed a will in Ireland. She had also previously executed a will in England. In the Irish will, the mother stated, "I appoint the Said Richard Hanley and Ellen Hanley to be Guardians of my infant Children." This Irish will was probated on August 20, 2003.

While in Ireland, the father and children lived in the home of the petitioners, the maternal grandparents ("the grandparents"). The Grandparents argued that the children were wrongfully removed from their Irish home in violation of the Hague Convention. The Court noted that the Convention states that " 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5. Furthermore, "rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State." Art. 3. Courts have generally construed "rights of custody" broadly to accomplish the abovementioned purposes of the Hague Convention. The judicial "opinions of our sister signatories" to the Convention are "entitled to considerable weight." See Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). In Re O, [1997] 2 FLR 702 (High Court, Eng.) the Court held that determining whether a parent has rights of custody is discretionary and may be based on the circumstances if a parent is acting with parental duties but does not have the benefit of a court order granting official custodial status. The Court held that the petitioners, who were grandparents, had rights of custody under the Hague Convention because they had taken on "full parental responsibilities over a substantial period of time." In so holding, the Re O court relied heavily on Re B. In Re B, [1994] 2 FLR 249 (Eng.). the biological father of F, who was a child of non-marital parents, alleged that F had been wrongfully removed from Australia by her mother. The father's paternity did not give him automatic rights of custody as to F since F was born out of wedlock. However, the Court held that the father had established rights to custody as follows: He had acquired rights amounting for Convention purposes to 'rights of custody'--first through his active role in the care of the child, secondly through the status which the mother and the grandmother had themselves accorded to him as a party whose consent was necessary before F could be removed from the jurisdiction or issued with a passport, and thirdly through the rights recognized or accorded to him when the mother signed the second minute. Like the grandparents in Re O, the father was granted rights because he took full parental responsibility for F while her mother lived abroad. In addition, his parental rights were accepted by F's other caretakers, and he was given rights through an agreement (the minute) signed by F's mother.

The grandparents cited to this broad understanding of rights of custody. They alleged that they have rights of custody to the children based on (1) a will signed by the mother ten days before her death, and (2) Articles 7(2), 7(3), and 10(2)(a) of the Guardianship of Infants Act of 1964. The grandparents alleged that the will appointed them testamentary guardians of the children, and that as testamentary guardians, they had rights of custody over the children.

The court noted that in Ireland, there is a distinction between guardianship and custody. Guardianship describes the group of rights and responsibilities automatically vested in parents of a child born within marriage and in the mother of child born outside of marriage in relation to the upbringing of the child .... Guardianship encompasses the duty to maintain and properly care for a child and the right to make decisions about a child's religion and secular education, health requirements and general welfare. The right to custody of child is one of the rights that arises under guardianship relationship.

Custody essentially means the right to physical care and control. Married parents residing together are the joint guardians and custodians of their children. If they separate, custody vests in the parent with whom the child primarily resides. The parent deprived of custody as a result of marital breakdown still remains a guardian and is entitled to continue to be involved in making decision about the upbringing, welfare, and development of the child. The grandparents were not automatically vested with guardianship of the children. Instead they were appointed guardians in the mother's will. The appointment had to be read literally and with the understanding that guardianship and custody are different. Guardianship does not have to include custody. Because the mother's will specifically stated that she is appointing the grandparents to be "guardians" of her infant children, the Court would not read into that language any greater rights or responsibilities, including custody. This reading of the will was consistent with Re O and Re B, despite those cases' broad reading of rights of custody. In Re O and Re B, the petitioner alleging rights of custody had exercised full parental responsibility over the children in question. The grandparents in Re O had been fully responsible for the child for over fourteen months; while the father in Re B took care his child in Australia while the child's mother lived in England. The grandparents here mainly testified to financial support for the children. At no time, since the mother's death, were they fully responsible for the day-to-day care of the children. That responsibility remained with the father. Even if the grandparents' guardianship had included rights of custody, their rights as to both guardianship and custody were abrogated when the father objected to their joint guardianship. Section 7(3) of the Guardianship of Infants Act states, "A testamentary guardian shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting." If the surviving parent does object, then under section 7(4), it is up the testamentary guardian to go to court to enforce his guardianship rights. Furthermore, "in such a case, the testamentary guardian cannot act as guardian unless, on application to the court, the court grants an order that the testamentary guardian shall act as guardian." The rights of the testamentary guardian are subject to agreement by the surviving parent unless superseded by a court order. Without agreement or a court order, the testamentary guardians simply do no have the right to act.

The grandparents failed to go to an Irish court to enforce their guardianship rights and therefore they "cannot act as guardian" to the children. Since the grandparents cannot act as guardians without a court order, the did not have rights of custody under the Hague Convention. The father's Motion to Dismiss the Petition was granted. The father objected to the maternal grandparents' testamentary guardianship over his children. Therefore, the grandparents had no rights of custody under the Hague Convention and the Court lacked jurisdiction to hear their allegations.