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

Abbott v. Abbott

Media for Abbott v. Abbott

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

Audio Transcription for Oral Argument - January 12, 2010 in Abbott v. Abbott

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?