Issues
Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction.
Petitioner Timothy Abbott and Respondent Jacquelyn Abbott divorced in Chile. The Chilean court granted the mother custody of their son while allowing the father only visitation rights. At the mother’s request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without the agreement of both parents. Without the father’s consent, the mother brought her son to the United States. The father asks the Supreme Court to decide whether the ne exeat order constitutes a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction. A right of custody ruling would mandate return to Chile. This case will primarily impact international child custody battles where one parent abducts a child to or from the United States.
Questions as Framed for the Court by the Parties
The Hague Convention on International Child Abduction requires a country to return a child who has been “wrongfully removed” from his country of habitual residence. Hague Convention art. 12. A “wrongful removal” is one that occurs “in breach of rights of custody.” Id. art. 3. The question presented is: Whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction.
Facts
In 1992, Timothy Abbott, a British citizen, married Jacquelyn Abbott, an American citizen, in England. Their son was born in the United States in 1995, and the family moved to Chile in 2002. In 2003, Mr. and Mrs. Abbott separated. A Chilean family court granted Mrs. Abbott custody rights and Mr. Abbott visitation rights. At Mrs. Abbott’s request, the court issued a ne exeat order, an order prohibiting either parent from removing their son from Chile without their mutual consent.
In August 2005, while some family court proceedings were still pending, Mrs. Abbott removed her son from Chile without Mr. Abbott’s consent. Thereafter, Mr. Abbott located his son in Texas. He then sought an order for his son’s return in the United States District Court for the Western District of Texas. He argued that the Chilean Court’s ne exeat order and Chile’s statutory ne exeat provision granted him a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), and, as such, under the Hague Convention, as implemented in the United States by the International Child Abduction Remedies Act, Mrs. Abbott must return their son to Chile. Mrs. Abbott conceded that she violated the ne exeat order and statute, but denied that the Hague Convention granted Mr. Abbott a right of return.
After a bench trial, the district court found in favor of Mrs. Abbott. The Fifth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari on June 29, 2009.
Analysis
The United States adheres to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The Hague Convention provides for the mandatory return of children who have been “wrongfully” transported to another country. According to Article 3 of the Hague Convention, removal or retention of children is wrongful if the removal is “in breach of rights of custody . . . under the law of the State in which the child was first habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised . . . or would have been so exercised but for the removal or retention.” The Fifth Circuit, in its opinion affirming the lower court’s decision, held that the ne exeat order was not a right of custody and thus did not trigger a return remedy under the Hague Convention. The Fifth Circuit faced a circuit split over whether a ne exeat order constitutes a right of custody within the meaning of the Hague Convention.
Autonomous Definition
Under Article 5 of the Hague Convention, rights of custody 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.” According to the father, the Hague Convention intended rights of custody to be an autonomous concept, independent of how custody rights are specifically defined by the laws of a particular country. He argues that rights of custody should be interpreted in light of the substance of the rights conferred by the country of habitual residence, not by how the country technically defined the right. Thus, because a ne exeat order includes the authority to deny consent to a child moving abroad or place conditions on such a move, it falls within the definition of rights of custody as defined under the Hague Convention. He points to the 1989 Special Commission Meeting where delegates addressed the meaning of rights of custody as authority to support this view. In support of this position, the United States government, in its amicus brief, agrees that the Hague Convention intends to include all possible ways rights of custody can arise. Thus, the definition of rights of custody in Article 5 is more expansive than rights in any particular contracting country.
Conversely, the mother argues that rights of custody should be construed according to the laws of the particular country. Under Article 1 of the Hague Convention, one of the objectives of the Convention is to make sure the “rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” The mother argues that the term “rights of custody” in Article 9 is simply a way for the Hague Convention to refer to a country’s body of rights.
Affirmative Right?
The father argues that a ne exeat order is a “right of custody” and would thus mandate return under the Hague Convention. Construing a ne exeat order broadly, he argues the right gives the holder decision-making power over in which country the child lives. Thus, it constitutes a right to determine the child’s place of residence and would be a custody right under the Convention. However, the mother contends that custody rights are affirmative rights in determining a child’s place of residence, and a ne exeat is not an affirmative right. In response, the father argues that a ne exeat order is an affirmative right to consent to where the child lives when the other parent seeks to take the child outside the child’s habitual residence.
A group of law professors acting as amicus curiae for the mother point out that Chilean Minors Law does not give the father affirmative authority to decide where the child will live, and, thus, he does not have custody rights under the Hague Convention. Supporting the father’s broader interpretation of the ne exeat order, the United States construes the right as an affirmative ability to impose conditions on the relocation of a child.
Custody Rights vs. Access Rights
According to the Hague Convention, rights of custody 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.” On the other hand, rights of access include “the right to take a child for a limited period of time to a place other than the child’s habitual residence.” The Hague Convention does not provide a remedy of mandatory return to a violation of rights of access. The father argues that a ne exeat order gives him power to grant conditions as to where his son lives and to have decision-making power related to the care of his son, which is part of the definition of rights of custody.
As amicus curiae for the mother, two delegates who attended the process of drafting the Hague Convention stated that, the drafters intentionally excluded ne exeat orders from the definition of rights of custody. The delegates stated that the drafters did not intend for ne exeat orders to convert rights of access into rights of custody. Furthermore, the drafters intended to give different remedies to violations of custody rights and violations of access rights. On the other hand, the Permanent Bureau of the Hague Conference on Private International Law (“Permanent Bureau”) noted there is a preponderance of case law among contracting states that the combination of access rights with a ne exeat order confers a custody right under the Convention.
Discussion
Petitioner Timothy Abbott (the father) argues that the Chilean court’s ne exeat order granted him a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), and, as such, the Hague Convention requires Respondent Jacquelyn Abbott (the mother) to return their son to Chile. Conversely, Mrs. Abbott argues that the ne exeat order merely confers a “right of access,” not a “right of custody.” Accordingly, she contends, the Hague Convention does not require her to return her son to Chile. Various amici argue that the best interest of the child and/or the effective functioning of the Hague Convention counsel certain outcomes.
The Best Interest of the Child
Several amici urge the Supreme Court to consider the best interest of the Abbotts’ son in making its decision. Several child advocacy organizations point out that, without a reason for the removal, international abduction is often not in the best interest of the child. They contend that the district and appellate courts did not “assess whether Chilean courts had adequately considered” the best interests of the child in issuing its order, and that the American courts failed to account for the adverse effects of abduction, which may include depression, fearfulness, and disruption in identity formation. They argue that courts should take a case-by-case approach in order to best protect the interests of each child. This is especially true where, as here, the foreign country that decided the custody arrangement may have different custodial customs than the United States.
The Domestic Violence and Civil Protection Order Clinic at the University of Cincinnati College of Law contends that deferring to the Chilean court’s analysis regarding the best interest of the child requires finding for Mrs. Abbott. The Clinic reasons that the Chilean court’s decision not to grant the father custody implies that the best interest of the child is for the ne exeat order not to constitute a right of custody.
A group of organizations working in the field of domestic violence are concerned that treating a ne exeat order as a custody right could adversely affect children and spouses fleeing abuse. They argue that, currently, many so-called “abductions” under the Hague Convention “involve primary caretaker mothers fleeing abuse” and that batterers use ne exeat orders as a tool to maintain control over their ex-partner. Furthermore, they argue that interpreting a ne exeat order to confer a right of custody could require an abused partner and child to return to the country, thereby placing them in danger, which is quite clearly contrary to the child’s best interest.
The Operation of the Convention
Several amici argue that coordination and cooperation are necessary for the effective implementation of the Hague Convention. The National Center for Missing and Exploited Children (“NCMEC”) argues that because “the Convention is built upon close cooperation among Convention contracting states,” there must be “reciprocity and uniformity in interpretation of the Convention.” In other words, they argue the scope of the ne exeat order must be interpreted uniformly for the Convention to function properly. The Permanent Bureau of the Hague Conference on Private International Law (“Permanent Bureau”) likewise urges consistent application of the Convention to maintain “mutual trust and confidence” between the contracting countries. Both the NCMEC and the Permanent Bureau argue that the consistent application of the Hague Convention requires the Supreme Court to construe the ne exeat order to grant a right of custody.
The State of California similarly urges the Supreme Court to construe ne exeat orders as conferring custody rights. California contends that comity and reciprocity counsel return of the child; state and local authorities must sometimes rely on international cooperation in child abduction cases.
Conclusion
The United States Supreme Court must determine whether a ne exeat clause confers a “right of custody” as contemplated under the Hague Convention on the Civil Aspects of International Child Abduction. The outcome will turn in part on whether the Court believes a ne exeat confers an affirmative power to determine the residence of a child. This decision will impact international child custody battles where one parent or guardian abducts a child to or from the United States. Ultimately, this decision will refine the scope of the return remedy, not necessarily final custody.
Written by
Edited by
Acknowledgments
Additional Resources
· Wex: Law about Child Custody
· Hague Conference: Child Abduction
· ConflictofLaws.Net: A Divided Opinion on the Hague Abduction Convention