In today’s 6-3 decision in the case of Abbott v. Abbott, 130 S.Ct. 1983 (2010) the United States Supreme Court decided that a non-custodial parent’s ne exeat right in a Chilean divorce decree, granting “authority to consent before the other parent may take the child to another country,” is a “right of custody” under the Hague Convention on the Civil Aspects of International Child Abduction. Therefore the United States courts have authority to order the return of this child to his country of residence. This decision reversed and remanded a Fifth Circuit Court of Appeals decision that this ne exeat right was only a “right of access” and that, therefore, the Hague Convention did not authorize an order of return.
The Abbotts entered a custody order involving their son, born in 1995, in Chile. That order gave the mother primary custody with the father having set visitation. Standard in Chilean custody orders is this ne exeat right, which requires a parent to obtain a court order or the other parent’s consent before taking the child to another country. Mother took the son to the United States without the father’s or the Chilean courts’ consent, and father petitioned for son’s return. The District Court and Court of Appeals denied his request but the Supreme Court accepted cert.
Both the United States and Chile are contracting states to the Hague Convention. The Supreme Court’s decision relies upon the statutory language of the Hague Convention, specifically the definitions of the “right of custody” and “right of access” and the differing remedies for enforcement of these rights. The Supreme Court noted the authority to order the return of a child stems from Article 12 of the Convention, which reads:
Where a child has been wrongfully removed or retained in terms of Article 3 … the authority concerned shall order the return of the child forthwith.
Thus, the remedy of an order for return requires a finding that “a child has been wrongfully removed or retained.” Article 3 of the Convention explains when a child has been wrongfully removed or retained:
The removal or the retention of the child is to be considered wrongful where—
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Article 5 of the Hague Convention further makes a distinction between a “right of custody” and a “right of access” to a child:
For the purposes of this Convention—
a “rights of custody” shall 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;
b “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Article 21 of the Convention provides that the noncustodial parent may file an application “to make arrangements for organizing or securing the effective exercise of rights of access.” However the Convention does not authorize a court to order the return of a child to his country of residence where only the “right of access” has been denied.
The issue in this case was whether, under the Hague Convention, this ne exeat right was a “right of custody” or a “right of access.” If ne exeat is a “right of access” the United States courts have no authority to order the child returned to Chile; if it is a “right of custody” the courts have this authority. The majority determined that this ne exeat right was part of “the right to determine the child’s place of residence.” Thus in removing their son from Chile, mother was denying the non-custodial father his “right of custody” and the United States courts have authority to order the son’s return to Chile. In reaching this decision the majority noted:
To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes.
The majority further noted:
Requiring a return remedy in cases like this one helps deter child abductions and respects the Convention’s purpose to prevent harms resulting from abductions.