International Abduction Treaty Trumps Parental Rights, Says U.S. Supreme Court

May 20, 2010 10:14 AM

WASHINGTON - An order prohibiting the removal of a child from a country without the noncustodial parent's consent is enforceable under an international child abduction treaty, the U.S. Supreme Court ruled on Monday.

In Abbott v. Abbott, a dispute between the American mother and British father of a 15-year-old boy that has been closely watched by family and international law practitioners, the justices, voting 6-3, resolved a split among the federal circuits over the meaning of so-called ne exeat clauses in child custody orders.

Justice Anthony Kennedy, writing for the majority, said the ne exeat clause in a Chilean court order conferred a "right of custody" on the noncustodial British father within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

And because the clause conferred a right of custody, wrote Kennedy, the father may seek the treaty's remedy -- a petition to return the child, in this case to Chile.

"A return remedy does not alter the pre-abduction allocation of custodial rights but leaves custodial decisions to the courts of the country of habitual residence," he explained.

Timothy and Jacqueline Abbott were living in Chile when they separated in 2003. The Chilean courts granted the mother daily care and control of their son and awarded the father regular visitation rights. Chilean law also conferred on the father a ne exeat right to consent before his son could be taken out of Chile.

Unable to find work in Chile, Jacqueline left Chile with their son and returned to the United States. Timothy found them in Texas and moved to enforce the ne exeat order.

Federal courts have disagreed on whether the ne exeat clause conferred a right of custody or a lesser right of access under the treaty. In the Abbott case, the 5th U.S. Circuit Court of Appeals ruled it was only a right of access. The court followed a 2nd Circuit decision in which then-Judge Sonia Sotomayor had dissented.

Justice Sotomayor joined Kennedy's decision overruling those two circuit courts.

"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," wrote Kennedy. "Mr. Abbott's joint right to decide A.J.A.'s country of residence allows him to 'determine the child's place of residence.'"

Besides the treaty's text and purpose to deter child abductions, Kennedy also relied on "broad acceptance" of this interpretation in international case law and support by the U.S. Department of State.

Justice John Paul Stevens, joined by Justices Clarence Thomas and Stephen Breyer, dissented. Stevens said the ne exeat clause constitutes a "travel restriction," not a right of custody.

"The travel restriction does not confer upon Mr. Abbott affirmative power to make any number of decisions that are vital to A.J.A.'s physical, psychological, and cultural development," wrote Stevens. "In Chile, for example, as a result of this Court's decision, all parents -- so long as they have the barest of visitation rights -- now also have joint custody within the meaning of the Convention and have the right to utilize the return remedy."

The majority left open whether the Abbotts' son must return to Chile, noting there are treaty exceptions to the return remedy. For example, one exception to return arises where there is a grave risk of physical or psychological harm to the child; another involves the child's age and maturity to object to return.

International law scholar Duncan Hollis of Temple University James E. Beasley School of Law noted that justices in both the majority and the dissent were willing to accept and use foreign law decisions in interpreting U.S. treaties and the laws implementing them.

"Indeed, as the dissent notes, the Court was willing to do this even if it meant overruling almost all the U.S. Court of Appeals' decisions on this question," he said.

Hollis also called the decision a victory for Sotomayor. "Justice Kennedy's opinion covers much the same ground as her earlier dissent [in the 2nd Circuit case, Croll v. Croll]," he said. "It's my sense that the majority here adopts her analysis step-by-step, in terms of looking at the treaty's text, its object and purpose, the negotiating history and other foreign law decisions."

Timothy Abbott's counsel in the Supreme Court was Amy Howe of Howe & Russell in Bethesda, Md. Jacqueline Abbott's counsel was Karl Hays of Karl E. Hays Law Office in Austin, Texas.

(Source: The National Law Journal)

18 May 2010