RESPONDENT:Jacquelyn Vaye Abbott
LOCATION: Abbott Residence
DOCKET NO.: 08-645
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 560 US 1 (2010)
GRANTED: Jun 29, 2009
ARGUED: Jan 12, 2010
DECIDED: May 17, 2010
Amy Howe – for the petitioner
Ginger D. Anders – Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae
Karl E. Hays – on behalf of the respondent
Facts of the case
Timothy Abbott, a British citizen, and Jacquelyn Abbott, an American citizen, litigated their divorce in the Chilean courts. Mrs. Abbott was awarded custody of their son, while Mr. Abbott was awarded visitation rights. At Mrs. Abbott’s request, the Chilean court entered an order prohibiting the child’s removal from Chile by either the father or mother without express mutual consent. One year later, Mrs. Abbott moved the child from Chile without Mr. Abbott’s consent. Upon location of the child in Texas, Mr. Abbott requested an order in a Texas federal district court that the child be returned to Chile pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the order holding that the child’s removal did not constitute a breach of the father’s “rights of custody” as defined by the Hague convention.
On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed, holding that the Chilean court’s order and Chilean statute that required father’s consent before the child could leave Chile did not give a non-custodial father “rights of custody” within the meaning of the Hague Convention. The court stated that Mr. Abbott merely possessed the rights of “access to the child.”
Does a clause that prohibits one parent from removing a child from a country without the other parent’s consent confer a “right of custody” within the meaning of the Hague Convention on International Child Abduction?
Media for Abbott v. Abbott
Audio Transcription for Opinion Announcement – May 17, 2010 in Abbott v. Abbott
John G. Roberts, Jr.:
Justice Kennedy has the opinion of the court this morning in three cases.
Anthony M. Kennedy:
The first case is 08-645, Abbott versus Abbott.
Mr. and Mrs. Abbott moved to Chile with their young son.
Now, there was marital discord.
The couple separated.
The Chilean courts granted the mother daily care and control over the boy while awarding the father regular visitation rights.
The Chilean law also conferred upon the father ne exeat right.
Now, a ne exeat right allows a parent, and here it was father, to consent before the other parent can take the child out of the country.
This right was of no avail however, the mother took the boy out of Chile without the father’s consent and this abduction violated the father’s ne exeat right.
Both parents, both parties agree on that point.
The father found Ms. Abbott and the boy in Texas.
The father brought this suit in United States District Court.
He sought an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects Of International Child Abduction.
Now that convention is a treaty to which the United States is a party.
Congress has implemented it by statute.
The District Court denied the father’s requested remedy.
The Court of Appeals for the Fifth Circuit affirmed.
Both parties agree too that the convention applies to this dispute, and that’s because the boy is under 16 years old.
He was a habitual resident of Chile and both Chile and United States are contracting parties to the convention.
The disagreement concerns how to interpret a key provision in the convention and that phrase is Rights of Custody and the question becomes whether or not the ne exeat right is also a right of custody under the convention.
If the ne exeat right that the father has is a right of custody then the father may assert a return remedy in the United States Courts.
On this theory the Trial Court would have to issue an order directing that the child be returned to Chile unless certain exceptions apply.
This Court’s inquiry is shaped by the text of the convention, the views of the United States Department of State, decisions addressing the meaning of Rights of Custody and courts of other contracting states and the purposes of the convention and after considering these sources the Court determines that the father’s ne exeat right is a right of custody under the convention.
The convention defines Rights of Custody to 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.
A parent holding an ne exeat right has both the right to determine a child’s place of residence and rights relating to the care and person of the child.
The phrase Place of Residence, does encompass the child’s country of residence and this is especially so in light of the convention’s purpose to prevent wrongful removal across international borders.
Here the ne exeat right gives the farther a joint right to determine his son’s country of residence as the boy cannot live in any country other than Chile with the father’s consent — without the father’s consent.
The father’s ne exeat right also give him rights relating to the care of the person of the child.
Few decisions are as significant, as the language the child speaks, the identity he finds or the culture and traditions she will come to absorb.
These factors are linked in an inextricable way to the child’s country of residence, one need only consider the different childhoods a child would experience if he or she grew up in the United States, Chile, Germany or North Korea to understand how taking joint part in choosing the child’s country of residence is a right related to the care of the person of the child.
Anthony M. Kennedy:
The Court of Appeals’ conclusion that the breach of ne exeat right does not give rise to return remedy would render the convention meaningless in many cases where it is most needed.
The convention provides a return remedy, when a parent takes a child across international borders in violation of a Right of Custody.
The conclusion, the Court reaches in today’s case is supported and informed by the State Department’s view that ne exeat rights are rights of custody.
The executive is well informed, concerning the diplomatic consequences of this Court’s interpretation of the convention.
This includes the likely reaction of other contracting states and the impact on the State Department’s ability to reclaim children who are abducted from this country.
The conclusion that ne exeat right are rights of custody is further informed by the views of other contracting states.
As is explained in today’s opinion, the Court has consulted cases interpreting the convention in the High Courts of the United Kingdom, Israel, Austria, South Africa and Germany and the opinion discusses those cases.
They all agree that ne exeat rights are rights of custody.
It is true on the other hand that the Canadian Supreme Court has indicated a contrary view in dicta and the French Courts are divided, yet even in light of this division, the Court and scholars in this area agree that there is an emerging international consensus that ne exeat right are rights of custody.
The view that the convention provides a return remedy for violation of ne exeat right, accords with the convention’s objects and purposes.
Ordering a return remedy does not alter the allocation of custody rights.
It does allow the courts of the home country to decide what is in the child’s best interests.
Custody decisions are often difficult.
Judges must always strive to avoid a common tendency to prefer their own society and culture, a tendency that ought not to interfere with objective consideration of all the factors that should be weighed in determining the best interest of the child.
International law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings.
To interpret the convention to permit an abducting parent to avoid a return remedy even when the other parent holds ne exeat right would run counter to the convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes.
This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here to avoid a return remedy that is granted for instance in the United Kingdom, Israel, Austria, Germany and South Africa.
Requiring a return remedy in cases like this one does helps deter child abductions and abduction can have devastating consequences for the child.
Child psychologists believe that the trauma children suffer from an abduction is one of the worst forms of child abuse.
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings, Justice Stevens has filed a dissenting opinion in which Justices Thomas and Breyer joined.