• 02
  • June
    2010

The last post outlined the procedural posture and facts of Abbott v. Abbott, the international child custody case. Today's post will explain how the United States Supreme Court arrived at its determination that a ne exeat right granted to a parent by a court of foreign jurisdiction grants an enforceable "right of custody" under the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter the Hague Convention).

Before beginning, it is important to understand what the Hague Convention actually is. According to the Hague Conference on Private International Law (HCCH), the Hague Convention is a "multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return."

The court began its analysis in Abbott with an initial determination that the terms of the Hague Convention governed the case. Next, the court concluded that any analysis under the Hague Convention necessitated an analysis of the relevant laws of the nation in question. Thus, the court would have to reference Chilean law.

After making the necessary inquiries into Chilean law, the court determined that the ne exeat rights granted to Timothy Abbott were most comparable to a "joint right of custody" under the terms of the Hague Convention. (Basically, this meant that the court found that Timothy's ne exeat rights granted him shared authority regarding his son's ultimate place of residence and that this authority was most similar to "joint right of custody" as defined by the Hague Convention.) As a result, Timothy was able to enforce his ne exeat rights under the Hague Convention and seek to return A.J.A. (whose name is protected in court documents) to Chile.

The court explained that the uniform return remedy provisions of the Hague Convention discourage parents from forum shopping in these sorts of child abduction cases and encourages them to resolve child custody disputes in their country of origin. Furthermore, the court feared that to reach any other result would render the Hague Convention "meaningless in many cases where it is needed most." 

Despite the outcome, the court did not order A.J.A. to return to Chile with his father. They reached this decision because the Hague Convention has provisions that expressly allow the abducting parent to establish an exception to the normal rules. Accordingly, the court gave Jacqueline Abbott her day in court by remanding the case for "further proceedings consistent with this opinion."

Related Resources:
  
• Court Holds that Ne Exeat Rights are Enforceable "Rights of Custody" under the Hague Convention (SCOTUSblog)
• International Abduction Treaty Trumps Parental Rights, Says U.S. Supreme Court (Law.com)