Abbott v. Abbott - 560 U.S. 1, 130 S. Ct. 1983 (2010)

Rule:

The central operating feature of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (reprinted at 51 Fed. Reg. 10494 (Mar. 26, 1986)) is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must order the return of the child forthwith, unless certain exceptions apply. A removal is "wrongful" where the child was removed in violation of "rights of custody." 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. Convention art. 5(a). A return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Convention art. 19. The Convention also recognizes "rights of access," but offers no return remedy for a breach of those rights. Convention arts. 5(b), 21. 

Facts:

The father sought to have his son returned to Chile from the United States, where he had been taken by respondent mother. Chilean courts had granted the mother daily care and control of the child and had awarded visitation rights to the father. Under Chilean law, the father had a ne exeat right to consent before the mother could take the child out of Chile. The District Court denied relief, holding that the father's ne exeat right did not constitute a “right of custody” under the Convention and, thus, that the return remedy was not authorized. The Fifth Circuit affirmed.

Issue:

Did the court of appeals err in affirming the holding of the district court that the father's ne exeat right did not constitute a “right of custody” under the Convention and, thus, that the return remedy was not authorized?

Answer:

Yes

Conclusion:

The Supreme Court disagreed with the district court and the court of appeals, holding that the father's joint right to decide the child's country of residence was a right of custody within the meaning of Convention art. 5(a). The father's ne exeat right gave him the right to determine the child's place of residence by ensuring that the child could not live outside Chile and also gave the father rights relating to the care of the person of the child. To have interpreted the Convention as not providing a return remedy for removal of a child in violation of a ne exeat right would have run counter to the Convention's purpose of deterring parents from seeking a friendlier forum for deciding custody disputes.