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. AbbottAudio Transcription for Oral Argument - January 12, 2010 in 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.