Abbott v. Abbott – Oral Argument – January 12, 2010

Media for Abbott v. Abbott

Audio Transcription for Opinion Announcement – May 17, 2010 in Abbott v. Abbott

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John G. Roberts, Jr.:

We’ll hear argument next in Case 08-645, Abbott v. Abbott.

Ms. Howe.

Amy Howe:

Mr. Chief Justice, and may it please the Court: The Hague Convention exists to ensure that custody disputes are resolved by the courts of the country of habitual residence rather than through abduction.

It thus generally requires the return of a child who is abducted in violation of a right of custody.

So too, a ne exeat right permits a parent to require that the child reside in the country of habitual residence, thereby rendering international abduction illegal.

Ne exeat rights are not only rights of custody under the text of the convention, but they also track the convention’s vital purpose of ensuring that children are not subject to international abduction.

Under the convention, Mrs. Abbott cannot evade the jurisdiction of the Chilean courts by abducting the child to Texas and then asking a Texas State court to nullify the rights granted to Mr. Abbott under Chilean law.

That’s the sound view of the great majority of signatory courts to consider the issue as well as essential authorities in both the United States and Chile.

Antonin Scalia:

How many–

Ruth Bader Ginsburg:

You would be on absolutely sound ground if this were a convention on the mutual recognition of jurisdiction and judgment, but it’s not.

You — you said the whole question is deferring to the courts of habitual residence, but this statute is not raised in terms of court jurisdiction.

It’s in terms of the right of a custodial parent.

Amy Howe:

Yes, Justice Ginsburg, and Mr. Abbott has a statutory ne exeat right as well.

The fact that he also has this right under the order is irrelevant, we believe, because no one is arguing for — that — the question is whether or not he has rights of custody under Chilean law, and it’s Chilean law that confers the ne exeat right.

The fact that he also has this right under the order is — is irrelevant for this case.

If Mrs. Abbott–

Ruth Bader Ginsburg:

You’re not relying on the order; you’re just relying on the statute?

Amy Howe:

–We are relying just on the statute.

Stephen G. Breyer:

If that’s so, imagine a well-educated American woman marries a man from a foreign country X.

They have a divorce.

The judge says, the man is completely at fault here, a real rotter.

The woman is 100 percent entitled to every possible bit of custody, and the man can see the child twice a year on Christmas Day at 4:00 in the morning.

That’s it.

Now, there’s a law like Chile’s that says you can’t take the child out of the country without the permission of the father too, this person who gets to see the child twice a year.

And you’re saying that that’s custody.

It’s custody, and — and what is the woman supposed to do?

She can’t get a decent job worthy of her education.

The — the — all the courts said that she’s entitled to the child.

She has to choose between her life and her child.

And — and is that what this — this convention is aimed at?

Amy Howe:

It would be a right of custody, Justice Breyer, that the convention doesn’t look to the purpose.

All it looks–

Stephen G. Breyer:

Now — now, of course, what I’m asking you with my example–

Amy Howe:

–Yes.

Stephen G. Breyer:

–Is why interpret it that way, where all that you have is a rule of law that applies to everybody, even in the case I’ve tried to imagine, where to say it’s a right of custody would ruin the life of the woman, would give the husband something which he should — certainly shouldn’t have in any moral term, it would seem, and she comes back to the United States and is forced to give her child back to whatever this country is.

I have called it X.

Now, why give that kind of interpretation to this statute, which seems to have a purpose that’s looking after women and children?

Amy Howe:

Certainly.

The — the statute that you hypothesize in this case, Justice Breyer, reflects the domestic country’s judgment that the child should remain in the country, unless the father agrees to its departure.

We don’t look to why the child’s — why the–

Stephen G. Breyer:

Well, that’s your conclusion.

I’m just trying to get — to see if there is any humane purpose underlying the interpretation that you have advocated, and certainly there are two interpretations here.

Your opponents will soon present us with a different one.

Amy Howe:

–Certainly — I mean–

Sonia Sotomayor:

There is an alternative, isn’t there?

Amy Howe:

–There is an alternative.

I mean, certainly under Chilean–

Sonia Sotomayor:

For the woman to go to the Chilean court?

Amy Howe:

–Exactly, Justice Sotomayor.

Under Chilean law and presumably under the law that you’ve hypothesized as well, Justice Breyer, the woman could go to court and ask for permission to leave the country, and that’s precisely what Mrs. Abbott could have done in this case.

She just never opted to do that.

Anthony M. Kennedy:

Well, suppose you — suppose you have a–

Stephen G. Breyer:

That isn’t my question.

Amy Howe:

Okay.

Stephen G. Breyer:

I’m trying to get at what the humane purpose would be, given your interpretation of the law in this kind of situation?

Amy Howe:

Well, the right to determine whether your child will remain in the country or go to another country is a very important right, and it’s simply that that’s the — if that’s the law that the — that the country has decided to establish, the convention doesn’t look to why that is.

And the drafters expressly envisioned, Justice Breyer, that there would be cases in which one parent would have physical custody of the child, the other parent would simply have the right to determine the child’s place of residence.

Anthony M. Kennedy:

–But what if — what if you’d have a country in which ne exeat orders are routinely imposed in every custody case?

Then it’s almost like your statutory case here.

What does that have to do with custody?

Amy Howe:

Well, that, again, simply reflects that country’s judgment.

Anthony M. Kennedy:

It seems — excuse me,–

Amy Howe:

Yes.

Anthony M. Kennedy:

–but I’ll just finish my own question.

Amy Howe:

Yes.

Anthony M. Kennedy:

It seems to me that what you are saying is that, in some countries, there — there is a presumption that there is always custody in the party — in both parties.

Amy Howe:

There may be a presumption.

We have researched, and we don’t believe that that’s actually particularly common, Justice Breyer.

But certainly in many countries, there’s now a presumption of joint custody.

And so, in all of those cases, under the convention, the left-behind parent would be entitled to the child’s return.

And the convention, again, doesn’t look to the purpose.

It doesn’t look to — there’s nothing in the convention, certainly, that requires that there be one category of parents who have rights of custody and are entitled to the return and another category of parents who are not entitled to the return remedy.

There’s a — there’s a system of mutual trust under the convention and–

Ruth Bader Ginsburg:

What happens to the woman who, now she has abducted the child to Texas, and she says to the Texas court: If you send me back, I am going to be beaten by this man who has a history of being a batterer?

Amy Howe:

–Two things, please, Justice Ginsburg.

The first is that that could happen in any case, not simply a case involving a ne exeat right, but also a case in which the left-behind parent had joint custody, and so to a — the second is that the convention — yes.

Ruth Bader Ginsburg:

You are saying that the court — the court that’s asked to give effect to the convention is helpless, that it’s automatic that if there is a custody right, the court in the state to which the child has been taken must order that the child be returned?

Amy Howe:

No — no, Justice Ginsburg.

Article 13(b) of the convention provides an affirmative defense to — to return if the court in the country of refuge determines that the child would face either a grave risk of physical or psychological harm or otherwise face an intolerable situation.

Anthony M. Kennedy:

As long as you brought that up, I was just going to ask: Should — if you prevail in this case, should there be a remand to see if that section applies?

Amy Howe:

Article 13(b) has not previously been raised in this case, but in any event, regardless, if this Court were to rule in our favor, then the appropriate course would be to remand for resolution of any remaining issues, yes, Justice Kennedy.

John G. Roberts, Jr.:

The answer you just gave about concern for the protection of the child, that applies only to the child?

In other words, in the case that we have been discussing, if the woman would be subject to whatever persecution or domestic violence, but the child — you know, there’s no suggestion of any harm targeted to the child, that would not be a case in which they could grant refuge?

Amy Howe:

The — the statute does — the text does apply to the grave risk of physical or psychological harm to the child, and certainly–

John G. Roberts, Jr.:

To only — only to the child?

Amy Howe:

–Only to the child, although arguably there would be some risk of psychological harm if what the woman’s allegation–

Ruth Bader Ginsburg:

Do you know–

John G. Roberts, Jr.:

So the woman would be subject to — if she wanted to remain with the child, there would be no protection.

She would have to choose between subjecting herself to violence or being apart from the child?

Amy Howe:

–Well, the courts could also, of course, Chief Justice Roberts, try, you know, to solve the problem through undertakings and placing conditions on the child’s return, if the — if the article 13(b) were not fully able to address the court’s concerns.

Amy Howe:

If the court–

John G. Roberts, Jr.:

That would be consistent with the convention, for the returning state to say, we are returning the child, but only if — you know, bang, bang, bang?

Amy Howe:

–Well, in other contexts, for example in the context of visas, yes.

The Special Commission meetings, when this issue has come up, has specifically urged the court — or urged courts to consider undertakings and also to consider intergovernmental negotiations in an attempt to ensure both the mother and the child’s safe return, yes.

Stephen G. Breyer:

What’s the law — what is the law if a mother and a child — sorry.

What’s the law if a couple living in a foreign country has a decree of the court, and the decree of the court grants certain visiting rights to the father, and the father, violating those rights, takes the child to a different country.

Can the mother get it back?

Amy Howe:

I’m sorry.

Could you–

Stephen G. Breyer:

What’s the normal law where you have a couple — they’re supposed to leave the child in the country, but it doesn’t say that.

There’s no ne exeat thing.

They’ve just agreed to certain visiting rights.

Amy Howe:

–Yes.

Stephen G. Breyer:

And in violation of those rights, the father, say, takes the child to another country in violation of the divorce decree of the first country.

Amy Howe:

If the mother had rights of custody, then those rights of custody would be breached by the–

Stephen G. Breyer:

No, you are not understanding my question.

Amy Howe:

–Okay.

I apologize, Justice Breyer.

Stephen G. Breyer:

My question is, outside this convention–

Amy Howe:

Yes.

Stephen G. Breyer:

–If — forget the convention.

Suppose there’s just a divorce decree.

Amy Howe:

Yes.

Stephen G. Breyer:

And suppose a parent, violating the decree, takes the child to another country in violation of an ordinary divorce decree.

Does the injured parent have a way of getting the child back?

Amy Howe:

There’s no international — other international remedy.

In the United States, for example–

Stephen G. Breyer:

I’m sure there isn’t, but under the law–

Amy Howe:

–there could be, for example, the UCCJEA in the United States.

You could go to court with an international order and attempt to seek the child’s return in that manner, yes.

Amy Howe:

You would attempt to seek enforcement of the court’s order in the United States.

Stephen G. Breyer:

–You would go and take the court’s order to a court in the United States and try to enforce it?

Amy Howe:

Yes.

Stephen G. Breyer:

And the American court would be under obligation, I guess, to enforce it?

Amy Howe:

In theory, yes.

Yes.

Stephen G. Breyer:

Well, all right.

So our question here is which of the two mechanisms should we use?

Amy Howe:

We should use this convention, Justice Breyer–

Stephen G. Breyer:

I know you think that, but I’m still worried about my mother in the case that — that you gave me.

Amy Howe:

–One thing that — that may give you some comfort, as far as the convention’s drafters are concerned, is that this was a scenario that the convention’s drafters had in mind from the very beginning of the drafting process.

They had five scenarios that they–

Stephen G. Breyer:

I’ve read through that, and I’ll tell you that, on the basis of my reading through all that stuff, my mind is in equipoise.

I find some one way, some the other.

I think maybe each side does a little overstating here, but — but I — I am in equipoise, having looked at that quickly.

So I know — I know the stuff, you can — but that’s why I am trying to get to the underlying humane idea that’s supposed to underlie that, and see if it applies here.

Amy Howe:

–Okay.

The — the convention was drafted on the premise that the best interests of children are served by their return to the country of habitual residence, so that the courts in that country can make the decisions.

The convention–

Ruth Bader Ginsburg:

–Ms. Howe, wasn’t the — the problem that gave rise to this Abduction Convention just the situation that Justice Breyer brought up?

That is, the parent that has visitation rights snatches the child, takes it to that parent’s home country, and then you are relying on only the court order.

That’s why we have the Hague Convention on the Abduction of Children.

It wasn’t for the — I mean, this — this case is not the usual case.

The usual case is the noncustodial parent takes the child out of the country where the custodial parent lives.

And, internationally, there was a huge problem of getting the child back, and that’s why we have the Hague Convention on Abduction, because courts weren’t enforcing foreign court orders.

Amy Howe:

–That’s right.

They were — they were not enforcing foreign court orders, and it’s true, Justice Ginsburg, as you say, that the sort of prototypical case that was present when they drafted the convention was that one parent, usually the mother, would have sole physical custody and the father would have just visitation, and it was intended to address that problem.

But at the time that they drafted the convention, they also had in mind the increasing prevalence of joint custody and included that in the convention.

And they also recognized, as I said, that there would be scenarios in which one parent would have what we’d consider to be physical custody of the child; the other parent would have other rights, such as the right to determine the child’s place of residence.

And they did intend for the parent who did not have physical custody but had other important rights relating to the child, such as the right to determine the child’s place of residence, to be–

Ruth Bader Ginsburg:

Well, what is the — what is the significance of their breaking down the two categories?

One is the rights of custody, and the other is rights of access.

Because I take it that under your view of the Chilean law, given that the noncustodial parent will always have this right to block taking the child out of the country, then there’s really no difference between the two categories, because every, say, father with the right of access — not custody, just access — would automatically by virtue of the law of Chile have this one custodial right; that is, to block taking the child out of the country.

Amy Howe:

–It’s true.

But again, Justice Ginsburg, you don’t look at why the country attributed those particular rights.

You just look at whether the parent has those rights.

And I think it’s helpful to think of the Chilean system, in effect, as a — as a form of joint custody, just as some countries have a presumption of what we would regard as joint custody.

John Paul Stevens:

Does your argument really boil down to the claim that this was, in effect, joint custody?

It seems to me it clearly was not.

Amy Howe:

We believe that the Chilean system is analogous to joint custody.

There’s a presumption that — but it–

John Paul Stevens:

I’d say it’s not, but–

Amy Howe:

–But–

John Paul Stevens:

–But — but are you arguing that this — that this case is — is the equivalent of a joint custody case?

Amy Howe:

–No.

We are arguing that the ne exeat right is a right of custody under the text of the convention.

If the Court has no further questions–

Anthony M. Kennedy:

Well, you’re saying — I know the white light’s on — but you are saying that every case that involves the Chilean government, the convention here is applicable, requiring return?

Amy Howe:

–If the parent has visitation rights, then yes.

That’s simply the way that Chile has opted to do it.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Anders.

Ginger D. Anders:

Mr. Chief Justice, and may it please the Court: The ne exeat provision at issue in this case gave Petitioner the power to prevent exactly the harm that is the Hague Convention’s central concern.

Anthony M. Kennedy:

Do you — do you agree that every case originating in Chile must come out this way, so that there is a return required?

Ginger D. Anders:

I agree that Chile has by law decided that the ne exeat right should arise automatically in any parent who has visitation rights.

Anthony M. Kennedy:

But that seems to me remote from the concept of custody that the convention has in mind.

Ginger D. Anders:

I don’t think so, Justice Kennedy.

I think the convention — the explanatory report makes clear that the convention is designed to protect all of the ways in which joint custody can arise and be awarded under domestic law.

And I think we have a variety of situations in every country in which joint custodial rights arise automatically.

For instance, in the United States, when two parents are married and separated, and there has been no custody order yet, we would say that both of those parents have automatic joint custody rights in the child.

Ginger D. Anders:

In civil law countries, there are a variety of automatic joint custodial decision-making–

John Paul Stevens:

But is there a distinction between the — what’s before us in this case and the different case in which the order specifically said custody shall be joint?

The same — would that not be a different case, in your view?

Ginger D. Anders:

–It would not be a different case, because the convention protects rights of custody, and it specifies that those rights can be awarded jointly.

John Paul Stevens:

But the decree says that custody — the mother is the one who has custody.

Ginger D. Anders:

The mother may have most of the custodial rights, what we would think of as physical custody, but the convention protects rights of custody.

And I think what’s particularly important is that it separates out the right to determine residence as the most important custody right with which it is concerned.

Stephen G. Breyer:

What they seem to be thinking of — this is — maybe you can get at what is bothering me.

I’m perhaps not articulating it very well.

But the — where there’s any kind of a custody right, I normally think there was a human being called a family law judge who has a very tough job, and he has looked at the situation of these two people here and the child.

And he said, at least: Smith and Mrs. Smith, you are each going to have a little bit, at least.

Now, but in a situation where he says to Mr. Smith, nothing, I want to give you nothing — he thinks this is Frankenstein’s monster; he does not want to give him a single thing — that, on your interpretation of this statute, that doesn’t matter.

Just because Chile has a general law that says you can’t take anybody out of the country without permission, just because of that, even Frankenstein’s monster is considered to have custody for the purposes of this, though the human being who looked at this, called the family law judge, said: Don’t let him near that child.

All right?

Now, that’s — don’t pick up on my errors in that I know I haven’t stated it quite right, but look at what I’m driving at.

And that’s what’s bothering me.

Ginger D. Anders:

Well, I think Chile could have made a determination as a matter of its domestic law, that it would be in the child’s interest–

Stephen G. Breyer:

I know there are ways out, but why should we include custody to be a situation where the human being who looked at this couple thought that that individual, the husband, should have nothing but visit him occasionally on Christmas?

Why should we interpret the word “custody” in this treaty to include even that situation, which turns the treaty into a general “return the child” no matter what?

Ginger D. Anders:

–Well, I think the convention’s fundamental principles actually are in line with your concerns, because what the convention says is that anytime that the child has been abducted in violation of a decision-making right that the — that one or the other parent has, then the child should be returned.

But the return remedy is not a determination that the child should live with the left-behind parent or that he should live out the rest of his life in Chile.

It’s simply a determination that the courts of the country of habitual residence should decide what should happen with the child going forward.

That’s the fundamental premise in it.

Sonia Sotomayor:

Ms. Anders, that’s the point, isn’t it?

The purpose of the convention is which court will decide the life of that child, correct?

Ginger D. Anders:

That’s exactly right.

Sonia Sotomayor:

And to avoid, as I understood the convention structure, this flight from court to court and this long, drawn-out process from country to country over who’s going to make that choice, correct?

Ginger D. Anders:

That’s right.

Sonia Sotomayor:

And so the idea is, whether it’s one custody right — correct me if I am wrong — whether it’s one custody right or many, which court is going to decide what’s in the best interest of that child?

Ginger D. Anders:

That’s exactly right, and I think the ne exeat right is very–

John G. Roberts, Jr.:

So that if — so that if you have the mother taking her daughter from, say, a country where she would be forced to be raised under sharia law and that — that is up to that country to decide whether the child has to be returned?

Or is there a basis for a domestic tribunal in the court, in the — what is it called, the country of refuge?

Can that country decide that the child should not be returned?

Ginger D. Anders:

–There are narrow defenses to return, and one of those is the grave risk defense in article 13(b).

There’s also a fundamental principles defense in article 20.

But, fundamentally, I think the convention is premised on the idea that the courts of the various states parties will be well-placed to determine the custody–

John G. Roberts, Jr.:

So it’s your position that, in that case, the mother should return her daughter to the country where she will be raised under a system that the mother finds quite offensive?

Ginger D. Anders:

–Well, that would not necessarily be the case.

Presumably, that mother could raise the 13(b) defense or the article 20 defense to return, and–

John G. Roberts, Jr.:

And what — I know Ms. Howe cited it.

What is the standard on the 13(b) defense?

Ginger D. Anders:

–It says,

“A grave risk that the return would expose the child to physical or psychological harm. “

John G. Roberts, Jr.:

Does — does the status of, in this case, women in the country, does that constitute grave risk, or is it an individualized determination?

Ginger D. Anders:

I think it would generally be an individualized determination.

But I think the convention is based on the assumption that wherever — wherever the parent started out, wherever their custody determinations are being made to begin with, that is the country that should continue in the normal situation to determine what should be in the interest–

John G. Roberts, Jr.:

And that country is going to make a determination in favor of their domestic law and their domestic system.

Presumably, they are not going to say: We think it’s a grave risk to the child to be raised under our system.

Ginger D. Anders:

–Well, it would be the — it would be the courts in the country of residence that would be making that determination.

But I think the question of which court might have a more favorable determination, that — that kind of forum-shopping is precisely what the convention was trying to prevent.

Stephen G. Breyer:

Well, could we interpret the words “great psychological harm” to include, for example, a situation where an educated woman with an advanced degree is unable to get work in the country where her child lives and has to live under conditions that are — that are really — we would say are fairly primitive because of her inability to find an appropriate employment?

Can you include that under great psychological harm, so that the child wouldn’t have to go back?

Ginger D. Anders:

Well, I — I presume that you could, in an individual case, offer evidence that might include things like–

Stephen G. Breyer:

Well, has there ever been — would you advocate that kind of very broad standard of great psychological — and what would be your position, or what’s the government’s position on that?

Ginger D. Anders:

–It’s that the defense would be more narrow than that.

But that’s because, first, the convention is based on the idea that — that the courts of the country of habitual residence can make this determination in the child’s best interest, and that they should be the ones to do that — we shouldn’t allow forum-shopping — and also because the return remedy is not a determination that the child will have to stay in the country for the rest of his life or even that the mother would necessarily have to return with him.

Antonin Scalia:

I thought it has to be psychological harm to the child; isn’t that right?

Ginger D. Anders:

That’s correct.

Antonin Scalia:

So psychological harm to the woman who can’t work in the country would be irrelevant.

Ginger D. Anders:

Well, it might be relevant evidence–

Antonin Scalia:

–unless that would secondarily affect the child?

Ginger D. Anders:

–Right.

Right.

Sonia Sotomayor:

Counsel, you said in your brief that this position by the Solicitor General is long-standing.

I’m quoting.

What do we look to, to see how far back and under how many administrations this position has been taken and in what form?

Ginger D. Anders:

Well, it’s certainly the position as memorialized in our brief here.

I don’t believe that we have memorialized it in writing prior to this brief, but this Court has in the past looked to the government’s position as memorialized in an amicus brief in this Court.

Sonia Sotomayor:

But we have been a part of the Special Commission since 1989, correct?

Ginger D. Anders:

That’s correct.

And in the first Special Commission meeting in 1989 and then again in 1993, this issue was on the agenda, and the United States joined the consensus of the states parties that a ne exeat right should be considered a custody right under the convention.

And so–

Sonia Sotomayor:

Is there anything in the history of the negotiation and passage of the — of the treaty that — that reflects what the U.S.’s position was on this particular issue?

Ginger D. Anders:

–Not on this particular issue specifically, but this has been our position as — as expressed in the Special Commission meetings and the reports to–

Ruth Bader Ginsburg:

You don’t question what the representative of the mother has said in this case, that the emphasis — when this Hague Convention was before Congress, the emphasis was on the custodial parent — that is, the person in the situation of the mother here — that what Congress was told was the urgent problem was the noncustodial parent taking the child away from the custodial parent.

That was the — the major thing that drove this convention and that’s what the State Department told Congress; isn’t that so?

Ginger D. Anders:

–I believe the State Department’s legal analysis stated that the typical case might be one in which a parent with — with primary physical custody had the child, but the visiting — the parent with visitation rights took the child to another country.

But the fact that it was a typical case means that it wasn’t the only type of case, and as — as family law has developed over the past 30 years, joint rights of custody have become more and more prevalent, and we, therefore, think that this is a joint right to determine residence under the convention, because it gives the father the right to withhold or grant consent to the child’s removal from the country.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Hays.

Karl E. Hays:

Mr. Chief Justice, and may it please the Court: Rights of custody and rights of access are very different and distinct substantive rights.

The Hague Convention makes a distinction between those two sets of rights and provides the automatic return remedy only in those situations where there has been a breach of a right of custody.

What Mr. Abbott is seeking in this case is to have the Court define a bright-line rule, saying that in any instance where there is a statute or a provision which limits the rights of the custodial parent to remove a child outside of — of the particular jurisdiction, that any time there is a statute or ordinance or order to that effect, that you confer rights of custody upon an individual who would otherwise only have rights of access.

Ruth Bader Ginsburg:

Well, you could say — you can say that the mother did not have full custodial rights.

One custodial right is certainly to determine where the child will live.

And the mother did not have that right with respect to taking the child out of the country.

Karl E. Hays:

The mother did not have the right to take the child out of the country without either obtaining the permission of the father or obtaining permission of the court to do that.

That was a limitation on her exercise of custodial rights.

It did not, in and of itself, grant a right to the father.

The father was not granted a custodial right.

Anthony M. Kennedy:

Well, you could say that the limitation on the custodial right is the right of the husband to visit once a month or 3 — 3 weeks a month.

I — I think that’s slightly an artificial approach.

Ruth Bader Ginsburg:

It’s a provision–

Sonia Sotomayor:

Let’s assume there’s a law that says joint custody; mom can determine the place to live; mom can determine the education of the child; dad can visit when he wants; dad can review choices but not veto them.

But we consider this joint custody.

Under your view, what defines custody under the convention in a way that would justify an American court saying, that’s not a custodial right; even though the law of that domestic jurisdiction defines that and says, that’s our terms of joint custody, but we create this kind of joint custody?

Karl E. Hays:

In — in that situation, the — the rights are created under the law of the jurisdiction, and that — and that — in that instance, it would be a joint custodial right.

Sonia Sotomayor:

Right.

Regardless of what the terms of that right are, so long as the domestic law deems it such, correct?

Karl E. Hays:

Right.

But in this instance the Chilean courts have not created a joint custodial right within the common–

Sonia Sotomayor:

Well, except the — the convention doesn’t define custodial rights, correct?

It doesn’t give them meaning except in one way, the right to determine a place of residence, correct?

Karl E. Hays:

–No, Your Honor.

What happens is the — the convention contains an understanding of what the parties at the time of the drafting of the convention understood custodial rights to entail.

The focus of the convention was on maintaining the relationship between the parent that was providing care.

And so the members of the convention–

Sonia Sotomayor:

Now, that’s a little tough, because parents provide care in so many different ways.

And weren’t the convention members very cognizant of the fact that in different countries that has different meanings?

Karl E. Hays:

–They were.

But they understood that there was a commonly accepted understanding of custody in terms of the party who had care for the child.

And that was–

Sonia Sotomayor:

That’s not the word they used.

They used

“custody rights including determining the place of residence. “

So they didn’t give any greater meaning to the word “care” than that.

Karl E. Hays:

–The — the exact definition from article 5 is

“rights of custody shall include rights relating to the care of the person of the child. “

and then they said,

“and in particular, the right to determine the child’s place of residence. “

Samuel A. Alito, Jr.:

Well, suppose there’s a court order that prohibits the — one of the parents — the parent with whom the child lives most of the time from moving more than an hour’s drive from the prior place of residence, would that be — would — would the — the other parent then have custody?

Karl E. Hays:

No.

Here again, that is — that is simply a restriction placed upon that parent’s right to exercise custody.

It is — it is–

Samuel A. Alito, Jr.:

Suppose the court order says that the — that the child may not move from the house where the child lives now.

Would that be custody?

Karl E. Hays:

–Again, that is — that is simply a restriction on that parent’s right to exercise their — their custodial authority.

Samuel A. Alito, Jr.:

Well, what’s the meaning of the phrase “determine the place of residence”?

Karl E. Hays:

“Determine the place of residence” was — was placed into the convention because that ordinarily is a right of custody.

A parent who ordinarily has the care of the child has the child with them.

And I would hazard a guess that if you were to ask anyone in this courtroom what their residence was, they would tell you that their residence is 123 Maple Street, that it doesn’t entail the determination of the actual country–

Samuel A. Alito, Jr.:

Well, okay.

So, if — it there’s a court order that says the child shall not move from 123 Maple Street without the consent of both parents, do both parents then have custody?

Karl E. Hays:

–In — in that instance, there may be a — a joint right regarding the — the determination of the residence, which is not what we have in — which is not what we have in this case.

But here again, it is — it is more in keeping with simply putting a restriction upon the parents who — the parent who has the right of custody, their right to exercise that.

John Paul Stevens:

Mr. Hays–

Ruth Bader Ginsburg:

–If he has the right to say no, don’t take the child out of the country, then he has something more than a right of access.

You — you are talking, well, she has the rights of custody.

But because he — it’s not just the court, because it’s his consent in the first instance.

He has a right to determine that the child shall not live outside the country of habitual residence.

That is not a right of access.

Karl E. Hays:

It’s important to understand here that — that he does not have a — a right under the Chilean statute.

If–

Ruth Bader Ginsburg:

I thought the statute says the consent of the — of the other parent.

Karl E. Hays:

–The — the statute says, first of all, that if you — you have the consent of the parent, but if you don’t get the consent of the parent, you go — you go to the court.

So it is–

Ruth Bader Ginsburg:

Well, that’s true of custody decrees generally.

We get them modified by a court in the best interests of the child.

So it — but in the first instance, it says — it’s he has the consent or withholding consent.

And my question to you is, whatever that is, it isn’t a right of access?

Karl E. Hays:

–It’s actually not — it — and that’s — and that’s the position that Mr. Abbott wants this Court to — to take, is that, well, it’s a right, and since it’s not a right of access, it has to be a right of custody.

It’s — it’s actually not a substantive right.

It is a means of doing two things, which is what the United States recognized at the time of the drafting of the convention.

It is a means of preserving the jurisdiction of the court.

It is also a means of enforcing access rights.

It’s a procedural right; it is not a substantive right.

And the — the Hague Convention clearly makes a distinction between substantive rights of custody and substantive rights of access.

But what — what the — Mr. Abbott wants–

Ruth Bader Ginsburg:

It just says that the right of access is the right to take a child for a limited period of time to a place other than the child’s habitual residence.

There’s nothing about procedure or substance in this; it says this is what right to custody is, and this is what right of access is.

Karl E. Hays:

–Actually, Your Honor, what the — what the convention does is not specifically define either term.

The — the terminology is — is it includes these particular rights, because they didn’t want to get specific as to what exactly rights of custody entailed, what exactly rights of access entailed.

Anthony M. Kennedy:

But that — that cuts both ways so far as you are concerned, because it includes — might mean that custody includes the right to insist on living in a specific country.

Karl E. Hays:

That was not the understanding of the — of the drafters of the convention, because — and–

Anthony M. Kennedy:

But, textually, that’s certainly plausible.

Karl E. Hays:

–Textually, when — when you examine article — when you examine article 5 in conjunction with article 3 and article 13, that doesn’t — that doesn’t follow, because article 3 and article 13 both provide that the rights had to be actually exercised.

And when you — you read the Pérez-Vera report, which is analyzing both of those sections, it — it’s clear that the intent of the drafters at the time was that you had to have actual physical care of the child, because the purpose of this — of this convention was to prevent the situation that this Court has already discussed, and that is, a parent who has custodial rights, full custody of a child — the other parent kidnaps the child and takes them to another country in order to seek a — another court order.

In this case, you don’t have that situation.

Chile already determined that Mrs. Abbott had full custody of her child.

John Paul Stevens:

–May I ask this question about the term “place” — “place of residence”?

Putting aside the control of the ne exeat that would prevent her from leaving the country, just looking at the situation within Chile, what — did she have any limitation on her right to pick that place of residence within Chile?

Karl E. Hays:

Absolutely not.

She could decide wherever she wanted to live in Chile under the court order that she was given.

She had full control over deciding where — where her son was to live–

John Paul Stevens:

So, the only control that the — the husband had was the right — whatever right was given by the ne exeat provision, that you can’t take the child out of the country?

Karl E. Hays:

–That’s correct.

That she had to first get either his permission or go to court and get permission of the — of the court.

John Paul Stevens:

And even if there had been no fight of the kind that developed, she would have had a unrestricted right to pick the place of residence?

Karl E. Hays:

Absolutely.

She — she had the absolute right to decide all issues with respect to her son.

Samuel A. Alito, Jr.:

Which is more important, determining the house in which the child is going to live or determining the country in which the child is going to live?

Karl E. Hays:

For purposes of the convention, determining the house where — where the child lives, determining the issues relating to the care of the child, because that was what the convention was intended to protect, that relationship, because you were having situations where a parent who had a custodial relationship with the child would have that relationship severed by the other parent taking the child, going to another country, and then seeking a court order.

And there is one thing that I think needs to be corrected here.

When Mrs. Abbott went to Texas, she did not attempt to obtain a court order that would have stripped Mr. Abbott of his rights.

In fact, in Texas the presumption is joint managing conservatorship.

And she asked for sole managing conservatorship, which would have been the equivalent of what she was granted under Chilean law.

Samuel A. Alito, Jr.:

Why would the signatories of this convention have wanted to regard a parent as having custodial rights if the parent has the right to veto a change of address within a country, but not when the parent has the authority to veto the future nationality and cultural background of the child?

Karl E. Hays:

They very well may not have intended either of those instances to create a — a joint right of — of custody.

At the point in time when the convention was being drafted, joint custodial rights were — were basically a new concept, and there were — there was not a lot of experience in the exercise of joint — of joint custodial rights.

The — the focus of the convention was ensuring that the parent who had the primary relationship with — with the child, that that relationship would not be severed by someone taking a child out of — of the country.

And that was the focus of — of the convention, which is why there was a distinct difference drawn between protecting rights of access and protecting rights of — rights of custody.

Rights of access were given different protection mechanisms under — under the convention, as opposed to the mandatory return that was — that was envisioned by rights — by–

Samuel A. Alito, Jr.:

I don’t want to belabor the point too much, but maybe you could just give me an example of a court order that you believe would give a parent the right to determine place of residence and, therefore, would constitute custody within the meaning of the convention.

Karl E. Hays:

–Typically — typically in — in Texas, Texas adheres to a position of joint managing conservatorship.

The presumption in Texas is that both parents have equal ability to make decisions regarding their child.

And so the courts will routinely enter orders to say both parents get to decide education, both parents get to decide medical issues.

Even in that instance, though, the court will attribute the right to determine the primary residence of the child to one parent or the other, and will impose a — a restriction on the exercise of that right.

They will impose a geographical restriction and say, you can establish residence only in this county or — or contiguous counties.

That’s in the nature, though, of a — of a joint managing conservatorship or joint custody situation.

What we have in this case, though, is an instance where all of the custodial rights, all of the decisionmaking authority was given solely to the mother.

The–

Ruth Bader Ginsburg:

Not according to the — what is it, the Chilean central authority, you know, the letter that was sent to the Second Circuit, I think in the Duran case.

The — the authority within Chile that is responsible for the implementation of this Hague Convention said that it regarded that statute to create a custody right for purposes of the Hague Convention.

Karl E. Hays:

–Actually, Your Honor, that — that statement in the briefs is a — is a misstatement of what happened in the Beaumont case.

In Duran v. Beaumont, there are — there are distinctions that have not been made by — by Mr. Abbott.

Most importantly, there was no court order in that case.

And, when there is no court order, under Chilean law, it is a situation where there is joint custody as a matter of law.

Secondly, the actual affidavit — and the language of the affidavit is quoted in the dissent to that case.

The actual affidavit states both parents have the guard and custody of their daughter, and the decisions of major importance must be adopted by both parents.

So, clearly, the Chilean authority was referencing in their — in their affidavits they provided in that case, to the fact that this was a joint custody situation.

Karl E. Hays:

And they — they didn’t decide it solely on the basis of — that this ne exeat statute created a right of custody.

Also–

Ruth Bader Ginsburg:

I thought there was a sentence in there — and you can correct me if I’m wrong — that said that the statute, under Chilean law, amounted to a right of joint custody.

Karl E. Hays:

–The wording — the wording of — of the sentence, it includes the statute.

It’s like the statute, comma, the guard and custody, and also decisions of major importance.

It’s — it’s a number of things.

It’s not just singled out the way that Mr. Abbott has — has presented it to the court.

They don’t make a statement saying, this statute equates to rights of custody.

It’s a situation where they say, you take all of this together, the fact that they had the guard and custody of their daughter and the decisions of major importance must be adopted by both parents — you take all of that together as the finding of the Chilean authority that, in fact, the parent in that case had joint decisions and had — had rights of custody that were being breached.

Stephen G. Breyer:

So if I — if I think, as Justice Alito was starting out, that if the — a court order in the divorce case says the father and mother will jointly decide what house to live in, that the father has a custody right, if it jointly says the father and the mother will decide what State to live in, that that’s a custody right.

That it says that the father and mother will decide what city, same.

The father and mother will jointly what country to live in, same.

But suppose that there is no such decree; rather, the jurisdictional statutes of the nation, without considering this family, have a rule that says they have to live in Chile without Court permission.

Is there any way I can draw a line, in terms of this statute, between the two situations, the one being where the divorce judge actually focused on the needs and circumstances of a family, the other being where there was no more than a jurisdictional law in a nation that tried to protect the jurisdiction of its courts?

Karl E. Hays:

The purpose of the convention was — was not focused on protecting the — the jurisdiction of–

Stephen G. Breyer:

I understand that, but what I’m wondering is if — if — I thought you would agree with me about that, and since I thought you would agree with me about that, you would explain to me how I could reach that result, consistent with the language of this convention, which talks about custody rights granted by operation of law.

Karl E. Hays:

–Our position is that this does not give any sort of affirmative right to the father, and it is not a right to determine because, if you take the common usage of the right to determine, it is to make an affirmative decision, and–

Antonin Scalia:

Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include the U.K., France, Germany — I believe, Canada.

Very few come out the way you — how many come out your way?

Karl E. Hays:

–Actually, Your Honor, the United States and Canada do, and the analysis that we–

Antonin Scalia:

Well, wait, I mean–

You’re writing our opinion for us, are you?

[Laughter]

Karl E. Hays:

–The — the United States and Canada — as we point out in our brief, and I believe that it’s pointed out in other amicus briefs, the — there have only been seven courts of last resort that have heard this issue.

There are some 81 countries that belong to the Hague Convention.

Antonin Scalia:

Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right?

And — and the purpose of a treaty is to have everybody doing the same thing, and — and I think, we — if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in — in other countries that are signatories to the treaty.

Karl E. Hays:

If, in fact, there were a — a consensus, but there — there is not a consensus in this instance because we — as we analyze in our brief and I believe the 11 law professors analyzed in their brief, you cannot get a clear consensus of what–

Stephen G. Breyer:

Who’s against it?

I — as I read their brief, France is not on their side.

Stephen G. Breyer:

It’s split.

Karl E. Hays:

–Correct.

Stephen G. Breyer:

Canada is on your side; that the House of Lords is — has some dicta written by two judges, which is good, but it wasn’t a holding in the case.

Karl E. Hays:

Correct.

Stephen G. Breyer:

And — and that’s about it, and so maybe they–

Ruth Bader Ginsburg:

You have — you have a lady–

Antonin Scalia:

Germany.

Stephen G. Breyer:

–Germany.

Ruth Bader Ginsburg:

–Elizabeth Butler-Sloss in the Court of Appeal in England, and that was a square holding.

Karl E. Hays:

That was — there — there have been — that is one instance.

However, you also have the situation of the — the Canadian opinions which are well-reasoned opinions–

Ruth Bader Ginsburg:

Which are dicta.

Karl E. Hays:

–Which, actually, even though — even though they did not return the child based on the — on the ground, they still made the — the decision, and the second case that followed–

Ruth Bader Ginsburg:

All right.

Well, you can take the German constitutional court.

Karl E. Hays:

–Well, the German constitutional court in that instance, their specific reference in the case itself to the fact that this involves also joint custody rights, as do — as do a number of the other foreign — of the other foreign cases.

Ireland, also, is one that is cited by Mr. Abbott, and that one involved a situation of joint parental responsibility.

Stephen G. Breyer:

Who do you count for you of the seven, just so I can write it down and go back and read them?

Any one of the seven for you?

Karl E. Hays:

Yes, the–

Stephen G. Breyer:

Which?

Karl E. Hays:

–The circuit courts in the United States–

Stephen G. Breyer:

Okay.

Any other for you?

Karl E. Hays:

–And Canada.

Stephen G. Breyer:

Canada.

Okay.

And who’s against you?

Karl E. Hays:

The — well, France is divided.

France has–

Stephen G. Breyer:

No.

I asked who is against you.

Karl E. Hays:

–Against us, it’s — other than — other than the dicta that — that’s pointed out in the English opinions, we take the position that the other ones, it’s unclear as to — as to how you–

Stephen G. Breyer:

You think one against you, one for you, the rest unclear?

Karl E. Hays:

–Unclear, because–

Stephen G. Breyer:

Okay.

Antonin Scalia:

Is Australia — is Australia unclear?

Karl E. Hays:

–Yes.

I — the — the Australian case dealt, again, with a — with a joint custody situation, and in — in that particular case, I believe — if I am correct in my recollection of it — the Australian court expressed some reservation about making a bright-line rule that these type of ne exeat clauses actually established–

Antonin Scalia:

Well, according to the Petitioner’s brief, if this is inaccurate, the Australian court followed the English Court of Appeal’s decision that Justice Ginsburg referred to, emphasizing the desirability of uniform interpretations of the convention, and I count that against you, the Australia.

Karl E. Hays:

–The — the point that we are making, however, is that, if you have a — one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders, and–

Antonin Scalia:

We will have to parse them out, obviously.

Anthony M. Kennedy:

I had one question for the other counsel and didn’t have an opportunity to ask it.

If the Respondent were return to Chile, would she face criminal charges or contempt charges?

Karl E. Hays:

–There — there is a possibility of — of that.

There is also a possibility under the — there was a question as to — the — what — what remedies could — could be used.

There are — there are — under the Hague Convention, article 21 provides remedies for access rights, which is what Mr. Abbott has.

Also, as was recognized by the State Department, when they sent their — when they sent their analysis to the Senate in favor of ratification, the State Department recognized that there are mechanisms within the United States to enforce these orders, namely the Uniform Child Custody Jurisdiction and Enforcement Act that Mr. Abbott could avail himself of.

And Mr. Abbott, in fact, did file an action in Texas to enforce his visitation rights.

Antonin Scalia:

Well, if these things were effective–

Anthony M. Kennedy:

Well, but the ne exeat order–

Antonin Scalia:

–we wouldn’t — we wouldn’t have a treaty, would we?

Karl E. Hays:

If they–

Antonin Scalia:

If these local remedies were effective, we wouldn’t have a treaty.

Anthony M. Kennedy:

–And I was–

Karl E. Hays:

–These–

Anthony M. Kennedy:

–I was going to say the ne exeat order, under your view, is the one order that can’t be enforced anyplace.

Karl E. Hays:

–Now, the — the — a violation of the ne exeat provision could be enforced, but the question before this Court is whether the means of enforcing the ne exeat provision falls under the auspices of the Hague Convention.

John Paul Stevens:

May I just ask this general question?

Is there any danger that the child is old enough to make the decision now, and, therefore, the cases are really moot?

Karl E. Hays:

Absolutely.

Under Texas law, a child that reaches the age of 12 — the court is entitled to consider that child’s — that child’s desires.

And under–

John Paul Stevens:

So no matter what we do, the child may actually provide the answer in this case?

Karl E. Hays:

–That, also, Your Honor.

Antonin Scalia:

Wait, does that provision of Texas law override the — the treaty that the United States has entered into?

Karl E. Hays:

The — one of–

Antonin Scalia:

Texas can ignore the treaty, because the child is over 12 years old?

Karl E. Hays:

–That — no, it’s a specific provision of the treaty, Your Honor.

Under article 13, the court — the court that is deciding whether to return the child has the discretion not to return the child if the child is of sufficient age for the court to take the wishes into account and the child doesn’t want to go back–

Anthony M. Kennedy:

But that — but that’s a defense to a removal order.

Karl E. Hays:

–It — yes, it is a defense to a removal–

Stephen G. Breyer:

How old is the child?

Karl E. Hays:

–The child is 14 and half right now.

And the–

Sonia Sotomayor:

The convention article 13 starts at 14, right?

Karl E. Hays:

–The — the convention article does not specify the age.

It leaves it up to — to the determination of — of the particular jurisdiction in which the case is — is tried.

However, because this is in Texas, the — the Texas statutes provide that you begin to take a child’s–

Sonia Sotomayor:

Is Mr. Abbott still in Chile?

Karl E. Hays:

–Mr. Abbott’s still living in Chile, yes.

Sonia Sotomayor:

And at the time when the child was removed, there was ongoing custody motions before the court in Chile?

Karl E. Hays:

Actually, that’s incorrect, Your Honor.

There was not a custody proceeding in — in Chile at the time.

There were three proceedings going on.

There was a protective order proceeding.

There was a request by Mr. Abbott to increase his visitation rights, his rights of access.

And then there was a child support action where my client was attempting to get some $23,000 in past-due child support.

Those were the actions that were pending.

There was no attempt at that time by Mr. Abbott to change custody.

Karl E. Hays:

Just as I was saying, there was no attempt by my client to change custody when she moved to Texas.

Stephen G. Breyer:

Why didn’t your client just ask the judge there to leave Chile?

Karl E. Hays:

Your Honor, I don’t know.

I don’t know.

If there’s no further questions–

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Howe, you have 4 minutes remaining.

Amy Howe:

Thank you, Mr. Chief Justice.

With regard to the child support, there was an ordinary dispute over the amount of child support that’s not addressed in the record and which was finally resolved and which Mr. Abbott paid.

The question of criminal charges — we are not aware on any charges pending in Chile.

Mr. Abbott has no intent to bring such charges if Mr. Abbott — if Mrs. Abbott returns to Chile.

And with regard to article 13 and the question about the child’s age, article 13 is discretionary rather than mandatory, so all that the court in the United States would be doing would be to send the child back so that the courts there could resolve the dispute.

Turning to the — the issues about — the question of both “determining” and “the place of residence”.

As, Justice Alito, you alluded, this is an international convention.

The convention doesn’t care if Mrs. Abbott moved with the child from one address in Chile to another.

The convention cares very much when a child is abducted from one country to another.

And as regards the definition of residence, it’s not defined in article 5(a), but it also appears in article 5(b), which refers to rights of access.

It refers to the right to take the child to a place other than the child’s habitual residence.

And the drafting history on this point makes quite clear that this refers not only to the right to take — take the child from the home, but to the right to take the child out of the country.

In the convention context, the word Mrs. Abbott would attribute to it.

The convention contemplates that rights will be held jointly and requires parents to work collaboratively.

So in this case, the Abbotts, by virtue of the ne exeat right, by virtue of the ne exeat statute, had a shared, enforceable right to determine whether their child would remain in Chile or would move somewhere else.

And despite what Mr. Hays has argued and has argued in his brief, it is a substantive right.

The parent who holds the right has the right to ensure that his child remains in the country of habitual residence, which has huge implications for the language and culture in which the child will be raised, and it ensures that the courts of Chile can resolve any disputes relating to the child.

It’s certainly not a mere enforcement mechanism for Mr. Abbott’s access right.

With regard to the question of whether or not Mr. Abbott needed to have care and control of the child to invoke rights of custody, article 5(a) of the convention is what defines rights of custody.

There is nothing in the text of that statute that requires the person invoking the convention to have physical care of the child.

Stephen G. Breyer:

Can we read that exception there to say — “grave injury” and so forth — can we read it as in essence saying, look, do what’s best for the child?

Amy Howe:

That — you could read that as a form of a best interests of the child standard.

I believe that we would regard it as a little bit narrower and a grave risk of harm to the child or otherwise place the child in an intolerable situation.

Amy Howe:

But it is a form of the best interest standard, certainly.

John Paul Stevens:

May I ask you, do you agree with your opponent, putting aside removing the child from the country, that within Chile itself the custodial parent had the full right to determine the place of residence?

Amy Howe:

We do agree, yes.

John G. Roberts, Jr.:

I’m sorry, I’m a little taken aback by your answer to Justice Breyer.

You think the grave prosecution standard means whatever is the best interest of the child?

Amy Howe:

No, I believe it’s a stricter standard than simply the best interests of the child.

It’s the — you know, it’s a — I believe it speaks for itself.

It is a grave risk of psychological harm to the child.

The convention–

John G. Roberts, Jr.:

And you agree with what I understood to be the Solicitor General’s position, that that’s an individual-specific and not a culture-specific determination?

Amy Howe:

–Yes, we do.

Article 13 is simply an affirmative defense to the — once a judge has found that rights of custody exist and have been breached.

There’s certainly nothing in the history of the convention that reflects any intent by the drafters to narrow the meaning of 13.

And finally, Mr. Hays cannot point to anything other than a single French trial court decision that holds squarely in his favor, and when that trial court decision was raised at the 1993 Special Commission meeting, it garnered no support from the delegates.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.